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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


Rollin  M.  Perkins 


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CRIMINAL   LAW 

PART  I 


INSTRUCTION     PAPER 


PRBPA.KBD  BT 


PERCY  BORDWELL,  LL.B.,    Ph.D. 

Professor  of  I,aw,  State  University  of  Iowa 


AMERICAN    SCHOOL    OF    CORRESPONDENCE 

I't 

CHICAGO  lUJNOIS 

n.8.A. 


T 

V.I 


CorYRXGHT  1912  BY 

Ambrican  School  op  Corrbsfondkncs 


Entered  at  Stationers'  Hall,  London 
All  Rights  Reserved 


C-f 


-I  -  1-3--  "^1 


^ 

K 


CONTENTS 


PART  I 

CHAPTER  I 

Crime 

Nature  of  Crime  page 

§     1.  A  public  wrong 1 

§    2.  Punishable  by  the  state 1 

§    3.  Criminal  process 3 

§     4.  Crime  distinguished  from  tort 3 

§     5.  Consent  of  the  injured  party 4 

§    6.  Fault  of  the  injured  party 6 

§    7.  Condonation 6 

§    8.  Participation  of  a  public  officer 7 

Kinds  of  Crimes 

§    9.  Felonies 8 

§  10.  Misdemeanors 9 

§  11.  Statutory  and  common-law  crimes 9 

§  12.  Malum  in  se  and  malum  prohibitum il 

Jurisdiction  over  Crime 

§  13.  Federal  and  state 12 

§  14.  No  common-law  jurisdiction  of  crime  in  the  Federal  courts 12 

§  15.  Theories  of  criminal  jurisdiction 13 

§  16.  Territorial  jurisdiction 14 

S  17.  Non-territorial  jurisdiction 17 

CHAPTER  II 

The  Criminal  Act  _ 

5  18.  Necessity  of  an  act 18 

§  19.  Omission  as  an  act 18 

§  20.  Means  of  commission 20 

§  21.  Remoteness 21 

§  22.  Contributing  acts ; .  23 

§  23.  Preparation 24 

§  24.  Attempts 25 

§  25.  Proximity  to  the  completed  crime 26 

§  26.  Not  necessarily  the  last  step 26 

§  27.  Possibility  of  the  completed  crime 27 

§  28.  Present  ability 28 

§  29.  Conspiracy 29 

5  30.  Solicitation 29 


CONTENTS 

CHAPTER  III 

Criminal  Intent  paob 

§  31.  The  guilty  mind 31 

§  32.  Motive 31 

§  33.  Ignorance  of  the  law 32 

§  34.  Mistake  of  fact 33 

§  35.  Presumption  or  inference  of  intent 35 

§  36.  Transferred  intent 36 

§  37.  Specific  intents 37 

CHAPTER  IV 

Criminal  Responsibility 

Insanity 

§  38.  Diseased  mind , 38 

§  39.  Right  and  wrong  test .  . 38 

§  40.  "Irresistible  impulse"  test 39 

§  41.  Delusions 40 

Intoxication 

§  42.  No  excuse  for  crime 40 

§  43.  May  affect  specific  intent 41 

§  44.  Provocation 42 

§  45.  Delirium  tremens 43 

§  46.  Involuntary  intoxication 44 

Coverture 

§  47.  Coverture 44 

Infancy  and  Incorporation 

§  48.  Infancy 45 

§  49.  Incorporation 45 

CHAPTER  V 

Justification  and  Excuse 

Public  Authority 

§  50.  Execution  of  process 47 

§  61.  Prevention  of  crime 48 

Domestic  Authority 

§  52.  Husband  and  wife 48 

§  53.  Parent  and  child 49 

§  54.  Schoolmaster  and  pupil 49 

Self- Defense 

§  55.  Reasonable  force 49 

§  56.  Retreat  to  the  wall 50 

§  57.  Anticipated  attack 61 


CONTENTS 

Defense  of  Dwelling  and  Property  p^ob 

S  58.  Defense  of  dwelling 53 

%  69.  Defense  of  property : 54 

5  60.  Recaption  of  property 64 

Coercion 

§  61.  Compulsion 55 

§  62.  Obedience  to  orders 65 

Necessity 

J  63.  Inevitable  necessity 66 

S  64.  Extreme  need 67 

Custom 

S  65.  Custom 58 

CHAPTER  VI 

Parties  in  Crime 

Combinations  in  Crime 

§  66.  Common  design 60 

§  67.  Principal  and  agent 62 

§  68.  Statutory  crime 64 

Principals 

§  69.  Principals  in  the  first  degree 64 

%  70.  Principals  in  the  second  degree 65 

Accessories 

§  71.  In  what  crimes  there  are  accessories 66 

§  72.  Accessories  before  the  fact 66 

§  73.  Accessories  after  the  fact 67 

PART  n 

CHAPTER  VII 

Crimes  Against  the  Person 

Assault,  Battery,  and  Mayhem 

§  74.  An  assault  as  an  attempt -. 69 

§  75.  An  assault  as  a  substantive  crime 69 

§  76.  Force  and  violence 70 

§  77.  Fraud 72 

§  78.  Consent 73 

§  79.  Exposure  of  child 74 

§  80.  Putting  in  fear 75 

§  81.  Injury  to  the  person 76 

§  82.  False  imprisonment 77 

§  83.  Kidnapping 77 

§  84.  Other  aggravated  assaults 77 

§  85.  Mayhem 77 


CONTENTS 

^2>e  PAOB 

§  86.  Definition 78 

§  87.  Against  the  will 78 

§  88.  Consent  to  the  act 78 

§  89.  Personation  of  the  husband 80 

§  90.  Consent  gained  by  fraud 80 

§  91.  Force 81 

Murder 

§  92.  Definition 81 

§  93.  Malice 82 

§  94.  Use  of  deadly  weapon 83 

§  95.  Intention  to  commit  a  felony 84 

§  96.  Resisting  arrest 86 

§  97.  Degrees  of  murder 87 

Manslaughter 

§  98.  Voluntary  manslaughter 88 

§  99.  Provocation 89 

§100.  Cooling  time 90 

§101.  Negligence 91 

§102.  Intention  to  commit  a  misdemeanor  or  trespass 92 

CHAPTER  VIII 

Crimes  Against  the  Dwelling  House 

Burglary 

§103.  Definition 93 

§104.  Breaking 93 

§105.  Entry 94 

§106.  The  dwelling  house 95 

Arson 

§107.  Definition 96 

§108.  Dwelling  house  of  another 96 

§109.  Burning 97 

CHAPTER  IX 

Larceny 

What  Property  the  Subject  of  Larceny 

§110.  Definition 98 

§111.  Real  property 99 

§112.  Animals 100 

§113.  Things  in  action 101 

§114.  Intangible  personalty 101 


CONTENTS 

Property  or  Goods  of  Another  nam 

§115.  Legal  possession 102 

§116.  Possession  of  things  on  one's  premises 102 

§117.  Possession  through  a  servant 104 

§118.  Custody 105 

§119.  Bailed  goods 106 

§120.  Lost  goods 106 

§121.  Stolen  goods 107 

§122.  Property  of  husband  or  wife 108 

Wrongful  Taking 

§123.  Trespass  and  larceny 108 

§124.  Rightful  taking  and  wrongful  appropriation 108 

§125.  The  taking  and  carrying  away 109 

Fraudulent  Taking 

§126.  Larceny  by  trick Ill 

§127.  Conditional  delivery 113 

Without  the  Consent  of  the  Oumer 

§128.  Delivery  by  servant 114 

§129.  Delivery  by  mistake  of  owner 116 

§130.  Intention  to  pass  title 116 

The  Intent  to  Steal 

§131.  Benefit  to  the  taker 116 

§132.  Intent  wholly  to  deprive  owner  of  property 117 

§133.  Intent  in  theft  by  owner 119 

§134.  Taking  under  claim  of  right 119 

Aggravated  Larcenies 

§135.  Grand  larceny 119 

§136.  Larceny  in  certain  places 120 

§137.  Robbery 120 

CHAPTER  X 

Other  Crimes  Against  Property 

Embezzlement 

§138.  Origin 122 

§139.  Receipt  of  property  for  the  master 123 

§140.  Intent 123 

Receiving  Stolen  Goods 

§141.  Nature  of  the  crime 124 

§142.  What  are  stolen  goods 124 

§143.  The  receiving 125 

§144.  The  intent '. 125 

§145.  The  gmlty  knowledge 126 


CONTENTS 

Obtaining  Property  by  False  Pretenses  pj^gk 

§146.  Origin 126 

§147.  Subject-matter  of 127 

§148.  The  false  pretense 128 

§149.  Matters  of  fact  and  matters  of  opinion 129 

§150.  Pretense  an  inducing  cause 130 

§151.  Intent 131 

Forgery 

§152.  Definition 131 

§153.  Nature  of  document 132 

§154.  Use  of  fictitious  name 133 

§155.  Use  of  own  name 134 

§156.  False  authority 134 

§157.  Intent 135 

CHAPTER  XI 

Other  Crimes 

Criminal  Conspiracy 

§158.  In  general 136 

§159.  Affecting  trade  or  labor 136 

Criminal  Libel 

§160.  In  general 137 

§161.  Publication 138 

Offenses  Against  Public  Justice  or  Authority 

§162.  Perjury 138 

§163.  Bribery 139 

§164.  Corrupt  practices 139 

§165.  Obstruction  of  justice 140 

Offenses  Against  the  Public  Peace 

§166.  Affrays,  riots,  and  unlawful  assemblies 140 

§167.  Forcible  entry  and  detainer 141 

§168.  Malicious  injury  to  property 142 

§169.  Malicious  mischief  in  general 142 

Crimes  Against  Religion  and  Morals 

§170.  Blasphemy 143 

§171.  Abortion 143 

§172.  Bigamy 144 

§173.  Adultery 144 

§174.  Acts  contra  b&nos  mores 145 

Public  Nuisances 
§175.  Public  nuisances 145 


CRIMINAL  LAW 


PART  I 

CHAPTER  I 
CRIME 

NATURE  OF  CRIME 

§1.  A  Public  Wrong.  A  crime  is  a  wrong  which  the 
state  looks  upon  as  peculiarly  affecting  itself.  Other 
wrongs  there  are,  often  more  wicked  than  crime,  but  if  the 
state  does  not  choose,  for  whatever  reason,  to  regard  them 
as  such,  they  are  not  crimes.  Their  criminality  depends, 
not  on  their  inherent  nature,  but  on  the  way  the  state  looks 
at  them.  Accordingly,  the  number  and  the  kind  of  crimes 
will  vary  with  the  government  and  the  times.  In  a  govern- 
ment intimately  connected  with  religion,  much  stress  will  be 
laid  on  matters  of  religious  belief  and  conduct,  while  the 
democracies  of  today  will  attempt  to  regulate  the  most  com- 
plicated transactions  of  modern  business  by  means  of  the 
criminal  law. 

§2.  Punishable  by  the  State.  Where  the  state  is 
directly  concerned  with  the  wrong,  as  where  an  official  is 
guilty  of  a  willful  breach  of  duty,  or  where  public  prop- 
erty is  intentionally  injured,  it  is  easy  to  see  that  the  state 
is  peculiarly  affected;  and,  likewise,  where  there  is  public 
disorder,  or  a  direct  attack  on  the  government,  or  its  money 
is  counterfeited ;  but,  perhaps,  in  most  cases  of  crime,  the 
wrong  to  the  government  is  not  so  obvious.  We  must  have 
some  test  to  determine  whether  the  state  regards  the  wrong 
as  peculiarly  affecting  itself.    We  have  such  a  test  in  the 

Copyright,  1919,  by  American  School  of  Correspondence.  i 


2  CRIMINAL  LAW 

liability  of  the  wrongdoer  to  punishment  by  the  state.  If 
the  wrong  is  punishable  by  the  state  it  is  criminal. 

The  most  common  forms  of  punishment  are  loss  of  life, 
imprisonment,  and  fine.  To  determine  whether  an  act  is  a 
crime,  therefore,  it  is  sufficient  in  most  cases  to  turn  to  the 
statute  books  or  the  decisions  of  the  courts  and  see  whether 
the  act  is  punishable  in  one  of  these  ways.  There  are  other 
forms  of  punishment,  however,  and,  sometimes,  a  law  with 
few  of  the  earmarks  of  an  ordinary  penal  statute  will  be 
held  to  be  a  criminal  law.  Thus  in  the  case  of  Cummings  v. 
Missouri,^  the  Supreme  Court  of  the  United  States  held 
that  a  provision  of  the  Missouri  Constitution  disqualifying 
all  persons  who  had  taken  any  part  in  the  Rebellion  from 
holding  office  or  acting  as  priests,  teachers,  or  attorneys, 
was  a  criminal  law  increasing  the  punishment  for  crime, 
and  so  ex  post  facto,  although  in  form  a  law  prescribing 
qualifications  for  office,  and  for  carrying  on  certain  call- 
ings. The  Supreme  court  considered  that  the  denial  of  the 
right  to  hold  office  or  to  carry  on  a  lawful  calling  was  as 
distinctly  a  form  of  punishment  as  would  have  been  the 
imposition  of  a  fine  or  imprisonment. 

Again,  damages  given  in  a  civil  action  may  be  ''penal", 
that  is,  more  than  sufficient  to  compensate  the  injured 
party  for  the  wrong  done  to  him,  and  although  one  would 
hardly  think  of  calling  a  man  a  criminal  because  he  had 
had  to  pay  penal  damages,  yet,  it  is  clear  that  there  is  an 
element  of  punishment  by  the  state  in  such  damages,  and 
that  to  that  extent  the  wrong  partakes  of  the  nature  of 
crime. 

But,  not  every  imprisonment  or  fine  under  the  authority 
of  the  state  is  intended  as  punishment.  A  man  may  be 
imprisoned  for  contempt  of  court  in  violating  an  injunction 
or  refusing  to  answer  a  proper  question,  and  may  some- 
times be  arrested  in  supplementary  proceedings  to  ascer- 
tain whether  he  has  property  that  may  be  levied  on  to 
satisfy  a  judgment  against  him ;  and  the  old  imprisonment 
for  debt  is  familiar  to  every  one.    Again,  a  man  may  be 

1  4  WaU.  277. 


CRIMINAL  LAW  3 

arrested  to  await  trial,  although  he  may  be  acquitted  sub- 
sequently. In  many  of  these  cases  the  detention  is  merely 
to  secure  the  presence  of  the  person  in  court,  or  to  compel 
him  to  live  up  to  some  civil  obligation,  and  is  not  intended 
as  punishment.  In  many  cases  of  contempt  of  court,  how- 
ever, punishment  is  the  object  of  the  imprisonment,  and 
yet,  if  such  contempt  will  not  render  the  wrongdoer  liable 
to  criminal  prosecution,  he  is  not  ordinarily  considered  a 
criminal.  So,  also,  the  violation  of  a  municipal  ordinance 
is  not  generally  considered  a  crime.  It  is  of  local  appli- 
cation, as  the  order  of  a  court  is  of  individual  applica- 
tion, whereas  what  is  generally  thought  of  as  criminal  law 
is  neither  local  nor  individual. 

§  3.  Criminal  Process.  There  are  wrongs,  then,  criminal 
in  their  nature  because  punishable  by  the  state,  which  are 
not  ordinarily  thought  of  as  crimes.  They  are  not  ordi- 
narily so  thought  of  or  treated  under  the  head  of  criminal 
law  unless  they  will  subject  the  wrongdoer  to  criminal 
process.  Criminal  process  is  the  process  commenced  by 
the  indictment  of  a  grand  jury  or  the  filing  of  an  infor- 
mation by  the  public  prosecutor,  although  minor  offenses 
against  the  general  law  of  the  state,  such  as  drunkenness, 
may  be  tried  by  police  magistrates  by  more  summary  proc- 
ess. Leaving  out  of  consideration  these  minor  offenses,  the 
ordinary  test  as  to  whether  a  wrong  is  a  crime,  is  the  lia- 
bility of  the  wrongdoer  to  be  proceeded  against  by  indict- 
ment or  information.  There  are  cases,  however,  where 
proceedings  commenced  by  indictment  or  information  are 
considered  essentially  civil.  Thus,  in  England,  the  ordi- 
nary method  of  securing  the  abatement  of  a  public  nuisance 
is  by  indictment,  although  the  courts  recognize  the  proceed- 
ing in  many  cases  as  essentially  civil,  while  in  this  coun- 
try the  information  in  the  nature  of  a  quo  warranto  (by 
what  authority)  to  try  title  to  office  is  generally  considered 
civil  in  nature,  though  criminal  in  form. 

§4.  Crime  Distinguished  from  Tort.  There  are  many 
wrongs  of  which  the  state  takes  notice,  yet  does  not  punish, 
but  gives  the  person  wronged  a  right  of  action  against  the 


4  CRIMINAL  LAW 

wrongdoer.  These  are  known  as  civil  wrongs  and  are 
called  torts.  A  wrong  may  be  both  a  crime  and  a  tort.  If 
it  is  punishable  by  the  state,  it  is,  in  the  broad  sense  of  the 
word,  criminal;  if  it  gives  the  person  wronged  a  right  of 
action  against  the  wrongdoer,  it  is  a  tort.  The  object  of 
the  state  in  a  criminal  prosecution  is  punishment ;  the  ordi- 
nary object  of  the  person  engaged  in  a  tort  action  is  com- 
pensation for  the  wrong  done,  or  restitution  of  the  prop- 
erty taken.  Sometimes,  acts  which  were  once  regarded  by 
the  state  as  torts  only,  have  since  come  to  be  regarded  by 
the  state  as  crimes.  Thus,  cheating  was  not  a  crime  at 
common  law  unless  the  cheat  had  used  false  weights  or 
measures,  or  tokens,  or  there  was  a  conspiracy,  and  so  in 
the  case  of  Commonwealth  v.  "Warren,^  where  the  defend- 
ant, under  the  pretense  that  his  name  was  William  Water- 
man and  that  he  was  a  grocer  in  good  credit  in  Salem,  had 
received  shoes  on  credit  from  one  Adams,  the  court,  among 
other  things,  said : 

"If,  therefore,  Adams  was  cheated  out  of  his  shoes  by 
the  defendant,  without  using  false  weights,  measures,  or 
tokens,  and  by  no  conspiracy,  but  only  by  his  credulity  in 
believing  the  lies  of  the  defendant,  although  he  may  have 
an  action  against  the  defendant  to  recover  his  damages, 
yet  this  indictment  cannot  be  maintained,  whatever  false 
pretenses  the  defendant  may  have  wickedly  used." 

At  the  present  time  such  an  act  would  be  punishable 
under  the  statutes  against  obtaining  property  under  false 
pretenses. 

§  5.  Consent  of  the  Injured  Party.  A  tort  is  a  private 
matter  between  the  parties  concerned.  If  the  party  injured 
consented  to  the  injury,  he  cannot  ask  for  damages  for 
that  which  was  done  with  his  permission.  It  is  his  own 
affair  if  he  precludes  himself  from  the  recovery  of  dam- 
ages by  his  previous  consent.  And  there  are  certain  acts 
which  are  crimes  only  when  done  without  the  consent  of  the 
other  party.  Thus,  an  essential  element  of  common-law 
rape  is  that  the  act  be  committed  without  the  consent  of  the 

»6  Mass.  72. 


CRIMINAL  LAW  6 

woman,  while  in  larceny  it  is  essential  that  the  taking  be 
without  the  consent  of  the  owner.  But  in  the  case  of  these 
crimes,  consent  is  fatal  to  the  crime,  not  because  of  any 
general  principle,  as  in  the  case  of  torts,  but  because  the 
absence  of  consent  is  expressly  made  an  element  of  the  par- 
ticular offense.  Thus,  suicide  is  a  common-law  crime,  and 
although  the  completed  crime  cannot  in  its  nature  be  pun- 
ished, it  is  a  not  uncommon  sight  in  at  least  one  city  for  a 
policeman  to  attend  the  hospital  where  the  attempted  sui- 
cides are  taken  in  order  to  hand  them  over  to  the  law  when 
they  shall  have  recovered  from  their  injuries,  and  to  prose- 
cute them. 

In  the  case  of  Regina  v.  Bradshaw,^  the  defendant  was 
indicted  for  the  manslaughter  of  one  Herbert  Dockerty  who 
had  died  as  the  result  of  injuries  caused  by  the  defendant 
in  a  game  of  Association  Football.  In  summing  up  the  case 
to  the  jury,  Lord  Bramwell  said : 

"The  question  for  you  to  decide  is  whether  the  death  of 
the  deceased  was  caused  by  the  unlawful  act  of  the  prisoner. 
There  is  no  doubt  that  the  prisoner's  act  caused  the  death, 
and  the  question  is  whether  that  act  was  unlawful.  No 
rules  or  practice  of  any  game,  whatever,  can  make  that  law- 
ful which  is  unlawful  by  the  law  of  the  land;  and  the  law 
of  the  land  says  that  you  shall  not  do  that  which  is  likely 
to  cause  the  death  of  another.  For  instance,  no  persons  can 
by  agreement  go  out  to  fight  with  deadly  weapons,  doing  by 
agreement  what  the  law  says  shall  not  be  done,  and  thus 
shelter  themselves  from  the  consequences  of  their  acts." 

§  6.  Fault  of  Injured  Party.  The  private  nature  of  tort, 
the  public  nature  of  crime,  leads  to  a  like  result  where  the 
one  injured  has  been  himself  at  fault.  Thus  in  Regina  v. 
Swindall,*  where  the  defendants  were  indicted  for  the  man- 
slaughter of  an  old  man  whom  they  had  run  over  and  killed, 
the  court  said : 

**The  prisoners  are  charged  with  contributing  to  the 
death  of  the  deceased,  by  their  negligence  and  improper 
conduct ;  and  if  they  did  so,  it  matters  not  if  he  were  deaf, 

» 14  Cox  C.  C.  83.  *  2  C.  &  K.  230. 


6  CRIMINAL  LAW 

or  drunk,  or  negligent,  or  in  part  contributed  to  his  own 
death;  for  in  this  consists  a  great  distinction  between  civil 
and  criminal  proceedings.  If  two  coaches  run  against  each 
other,  and  the  drivers  of  both  are  to  blame,  neither  of  them 
has  any  remedy  against  the  other  for  damages.  So,  in 
order  that  one  shipowner  may  recover  against  another  for 
any  damages  done,  he  must  be  free  from  blame ;  he  cannot 
recover  from  the  other  if  he  has  contributed  to  his  own 
injury,  however  slight  the  contribution  may  be.  But,  in 
the  case  of  loss  of  life,  the  law  takes  a  totally  different 
view — the  converse  of  that  proposition  is  true;  for  there 
each  party  is  responsible  for  any  blame  that  may  ensue, 
however  large  the  share  may  be ;  and  so  highly  does  the  law 
value  human  life,  that  it  admits  of  no  justification  when- 
ever life  has  been  lost,  and  the  carelessness  or  negligence 
of  any  one  person  has  contributed  to  the  death  of  another 
person.'* 

So,  too,  it  is  no  defense  to  a  criminal  prosecution  that 
the  victim  of  the  crime  with  which  the  defendant  is  charged 
was  at  the  time  engaged  in  a  criminal  design  on  the  defend- 
ant. Thus,  in  a  prosecution  for  obtaining  property  under 
false  pretenses,  it  is  generally  held  not  to  be  a  defense  to 
show  that  the  victim  of  the  fraud  was  himself  attempting 
to  cheat  the  defendant.  In  People  v.  Martin,^  the  court 
said: 

**If  the  party  defrauded  is  also  guilty  of  a  violation  of 
the  law,  he,  too,  should  be  prosecuted,  rather  than  his 
offense  should  serve  as  a  shield  to  the  other's  crime.  The 
offense  is  committed  against  the  public,  and  not  against  the 
individual.  The  guilty  party  is  prosecuted  in  the  interest 
of  the  people  of  the  state,  and  not  in  the  interest  of  the 
party  defrauded  of  his  property.  There  is  no  principle  of 
law  that  will  bar  the  state  from  prosecuting  a  criminal 
because  some  other  person  is  a  particeps  criminis." 

§  7.  Condonation.  The  forgiveness  of  the  party  wronged 
will  not  wipe  out  the  crime,  nor  will  the  restitution  of  the 
property  taken,  and  if  the  owner  of  property  receives  it 
back  from  the  thief  on  condition  that  he  will  not  prosecute 

»102  Cal.  558. 


CEIMINAL  LAW  It 

the  latter,  he  is  guilty  of  compounding  a  felony.  In  the 
case  of  Fleener  v.  State,^  the  defendant  had  been  convicted 
of  embezzling  the  funds  of  an  express  company.  As  one  of 
the  grounds  for  a  new  trial  it  was  urged  that  as  the  defend- 
ant had  hired  a  guarantee  company  to  make  his  bond  for 
the  faithful  performance  of  his  duties,  and  as  the  guarantee 
company  had  paid  the  express  company  the  amount  of  its 
losses,  the  express  company  had  no  longer  any  interest  at 
stake,  and  the  defendant  was  not  guilty.  But  the  court 
said: 

*'In  this  the  defendant  is  mistaken.  This  is  no  longer  a 
controversy  between  himself  and  the  two  companies,  or 
either  of  them,  and  has  not  been  since  he  fraudulently 
appropriated  the  money  of  the  express  company,  if,  indeed, 
he  did  so  appropriate  it.  It  is  now  a  controversy  between 
the  State  of  Arkansas  and  himself,  which  the  State  will  not 
permit  either  one  of  the  said  companies  to  determine  at 
present  or  in  the  future ;  nor  will  the  State  acknowledge  the 
validity  of  any  settlement  of  it,  by  anything  they  both,  or 
either  of  them,  have  done  in  the  past." 

It  is  frequently  provided,  however,  that  the  subsequent 
marriage  of  the  parties  is  a  bar  to  a  prosecution  for 
seduction. 

§  8.  Participation  of  a  Public  Officer.  But,  although  the 
consent,  or  the  fault,  or  the  forgiveness  of  the  injured 
party  will  not  avail  the  accused,  it  is  familiar  law  that  the 
executive  may  pardon  him ;  and  ordinarily,  the  prosecuting 
attorney  has  considerable  discretion  in  the  prosecution  of 
crime,  and  in  the  promise  of  immunity  for  turning  state's 
evidence.  But  for  the  act  of  the  official  to  be  binding  on 
the  state,  it  must  be  duly  authorized ;  and  where  an  assist- 
ant district  attorney  handed  over  certain  records  for  which 
he  had  been  offered  a  bribe,  and  the  taker  claimed  that  he 
could  not  be  guilty  of  an  attempt  to  commit  larceny  because 
the  property  had  been  taken  with  the  consent  of  the  owner, 
(the  state)  the  court  held  that  the  district  attorney  had  no 
authority  to  part  with  the  records  in  the  way  he  had  done, 
that,  therefore,  there  had  been  no  consent  on  the  part  of 

•  58  Ark.  98. 


8  CRIMINAL  LAW 

the  state,  and,  accordingly,  all  the  elements  of  larceny  were 
present.^ 

And,  although  the  law  does  not  encourage  entrapment 
into  crime  in  order  to  secure  convictions,  the  mere  fact  that 
a  government  oJBficial  has  furnished  the  opportunity  for  the 
particular  offense  does  not  render  it  the  less  criminal. 
Thus,  in  Grimm  v.  United  States,^  where  a  postoffice  inspec- 
tor had  suspected  the  defendant  of  dealing  in  obscene  pic- 
tures, and  to  secure  evidence  against  him  had  written  for 
a  supply  of  them,  upon  which  the  defendant  had  mailed 
them  to  him  and  was  now  being  prosecuted  for  this,  the 
court  said: 

"It  does  not  appear  that  it  was  the  purpose  of  the  post- 
office  inspector  to  induce  or  solicit  the  commission  of  a 
crime,  but  it  was  to  ascertain  whether  the  defendant  was 
engaged  in  an  unlawful  business.  The  facts  that  the  let- 
ters were  written  under  an  assumed  name  and  that  he  was 
a  government  official — a  detective,  he  may  be  called — do  not 
of  themselves  constitute  a  defense  to  the  crime  actually 
committed.  The  official,  suspecting  that  the  defendant  was 
engaged  in  a  business  offensive  to  good  morals,  sought 
information  directly  from  him,  and  the  defendant  respond- 
ing thereto,  violated  the  law  of  the  United  States  by  using 
the  mails  to  convey  such  information,  and  he  cannot  plead 
in  defense  that  he  would  not  have  violated  the  law  if 
inquiry  had  not  been  made  of  him  by  such  official. '  * 

KINDS  OF  CRIMES 

§  9.  Felonies.  Felonies  appear  to  have  been  originally 
violations  of  the  feudal  obligation  binding  lord  and  vassal. 
At  any  rate,  it  early  came  to  be  the  law  that  the  goods  of 
the  felon  should  be  forfeited  to  the  lord,  and  this  fact  must 
have  inclined  the  landlords  to  look  with  favoring  eyes  on 
the  general  extension  of  the  term  felonies  to  the  more 
serious  crimes. 

High  treason  seems  to  have  been  a  felony  under  the  early 
law,  but  at  an  early  date  goods  forfeited  for  high  treason 
went  to  the  king  and  not  to  the  lord,  and  soon  high  treason 

7  People  V.  MiUs,  178  N.  Y.  274.  8156  U.  S.  604. 


CRIMINAL  LAW  9 

came  to  be  recognized  as  in  a  class  by  itself.  Both  high 
treason  and  the  felonies,  with  the  exception  of  petty  lar- 
ceny, were  punishable  at  common  law  with  loss  of  life. 

The  principal  common-law  felonies  were  homicide,  arson, 
rape,  robbery,  burglary,  and  larceny.  A  common  test  of 
the  felonious  character  of  a  crime  today  is  that  it  should 
be  punishable  capitally  or  by  imprisonment  in  the  state 
penitentiary  or  prison.  The  United  States  Supreme  Court 
has  applied  the  same  definition  to  infamous  crime;® 
although,  in  a  broader  sense,  infamous  crimes  include  not 
only  felonies  and  treason,  but  less  serious  crimes  which 
render  the  criminal  incompetent  to  testify  as  a  witness. 
These  less  serious  crimes  usually  involve  falsehood,  and 
affect  the  administration  of  justice. 

§  10.  Misdemeanors.  Indictable  offenses  less  serious 
than  felonies  and  treason  are  misdemeanors.  It  is  the 
great  residuary  class  of  indictable  crimes,  including  at 
common  law  such  offenses  as  perjury,  battery,  libel,  and 
conspiracy,  but  not  including  a  multitude  of  minor 
offenses,  such  as  drunkenness,  which  were  punishable  at 
common  law  by  the  justices  of  the  peace  on  summary  proc- 
ess, but  for  which  the  law  had  no  fitting  designation.  For 
offenses  of  this  kind  to  be  properly  called  crimes,  it  is  gen- 
erally necessary  that  they  should  be  punishable  by  the  law 
of  the  state  as  a  whole.  Violations  of  municipal  ordinances 
are  not  generally  considered  crimes. 

§  11.  Statutory  and  Common-Law  Crimes.  In  most,  if 
not  in  all  of  the  states  today,  there  are  criminal  codes.  In 
other  words,  much  of  our  criminal  law  is  statutory  law. 
Some  states  have  even  gone  so  far  as  to  do  away  with 
common-law  crimes  altogether,  and  others  have  confined 
the  punishment  of  purely  common-law  crimes  within  nar- 
row limits.  And  yet,  even  these  states  derive  the  great 
bulk  of  their  criminal  law  from  the  common  law  of  Eng- 
land. They  may  have  given  that  law  statutory  form,  and 
may  have  changed  a  detail  here  and  a  detail  there,  and 
even  made  wholesale  changes  in  the  penalties  imposed,  and 

»  Ex  parte  Wilson,  114  U.  S.  417. 


10  CRIMINAL  LAW 

yet  it  remains  true  that  the  great  bulk  of  the  law  is  good 
common-law  doctrine.  Sometimes  a  crime  is  named  and  a 
penalty  imposed,  leaving  the  definition  of  the  crime  to  be 
determined  by  the  common  law,  and  even  where  the  defini- 
tion is  given,  it  is  generally  little  more  than  the  definition 
of  the  common  law  and  needs  explanation  by  a  resort  to 
the  common-law  authorities.  The  changes  themselves  are 
often  unintelligible  without  a  knowledge  of  what  was 
intended  to  be  changed. 

However  carefully  drawn  the  definition  of  the  crime  may 
be,  there  are  certain  elements  which  each  crime  has  in  com- 
mon with  other  crimes  which  will  not  be  included  in  the 
definition  of  the  particular  crime,  and  for  the  determina- 
tion of  which  resort  must  ordinarily  be  had  to  the  com- 
mon law.  Thus,  the  rules  as  to  responsibility  for  crime,  as 
in  the  case  of  insanity,  or  as  to  excuse  for  crime,  as  in  the 
case  of  self-defense,  are  general,  and  not  to  be  found  in  the 
definition  of  a  specific  crime.  Sometimes,  however,  it  is 
difficult  to  determine  whether  a  general  common-law  prin- 
ciple is,  or  is  not,  to  be  read  into  the  statutory  definition. 
Thus,  it  came  to  be  one  of  the  well-settled  common-law 
principles  that  a  reasonable,  bona  fide  mistake  of  fact,  as 
long,  at  least,  as  the  fact  believed  to  exist  was  not  wrong- 
ful, would  be  a  good  defense  to  a  criminal  charge.  For 
instance,  if  a  man,  in  good  faith,  and  with  reasonable  cau- 
tion, should  kill  an  innocent  person  in  his  house  under  the 
belief  that  he  was  a  burglar,  he  would  not  be  guilty  of 
crime.  Is  such  a  principle  to  be  read  into  a  statutory  crime 
where  it  is  not  said  whether  the  criminal  act  must  be  done 
''knowingly"  or  ''intentionally"? 

This  was  the  question  before  the  court  in  Regina  v.  Tol- 
son,^^  where  a  woman  was  charged  with  bigamy  under  a 
statute  which  provided  that  any  one  being  married,  who 
should  marry  any  other  person  during  the  life  of  the  for- 
mer husband  or  wife,  should  be  guilty  of  felony,  with  the 
proviso  that  nothing  in  the  act  should  extend  to  any  such 
person  whose  husband  or  wife  had  been  continually  absent 

10  23  Q.  B.  Div.  168. 


CRIMINAL  LAW  11 

for  the  last  seven  years  and  should  not  have  been  known 
to  be  living  during  that  time.  In  this  case  the  woman  had 
acted  upon  information  of  her  first  husband's  death,  which 
the  jury  found  that  she,  upon  reasonable  grounds,  believed 
to  be  true.  The  court  held  that  the  common-law  principle 
of  a  reasonable  mistake  of  fact  was  to  be  read  into  the 
statute,  and  that  the  woman  was  not  guilty.  The  Supreme 
Court  of  Massachusetts  in  a  similar  case  came  to  a  con- 
trary conclusion.^^  They  considered  that  the  legislature 
had  intentionally  excluded  the  common-law  principle  from 
the  statute. 

§12.  Malum  in  Se  and  Malum  Prohibitum.  We  have 
already  seen  that  a  wrong  is  not  a  crime  of  itself,  but 
because  the  state  regards  it  as  such.  Accordingly,  the  dis- 
tinction between  malum  in  se  and  malum  prohibitum  has 
been  declared  unsound,  and  if  its  only  meaning  in  the  crimi- 
nal law  were  that  there  are  certain  acts  which  are  crimes 
in  themselves,  in  contrast  to  other  acts  which  are  crimes 
because  prohibited,  it  certainly  would  be  unsound.  A  satis- 
factory explanation  of  the  distinction  is  given  in  the  case 
of  State  V.  Horton,^2  where  the  court  said : 

**An  offense  malum  in  se  is  properly  defined  as  one 
which  is  naturally  evil  as  adjudged  by  the  sense  of  a  civil- 
ized community;  whereas  an  act  malum  prohibitum  is 
wrong  only  because  made  so  by  statute.  For  the  reason 
that  acts  mala  in  se  have,  as  a  rule,  become  criminal 
offenses  by  the  course  and  development  of  the  common  law, 
an  impression  has  sometimes  obtained  that  only  acts  can 
be  so  classified  which  the  common  law  makes  criminal,  but 
this  is  not  at  all  the  test.  An  act  can  be,  and  frequently  is, 
malum  in  se,  when  it  amounts  only  to  a  civil  trespass,  pro- 
vided that  it  has  a  vicious  element,  or  manifests  an  evil 
nature,  or  wrongful  disposition  to  harm,  or  injure  another 
in  his  person  or  property." 

The  court  did  not  hesitate  to  declare  that  the  offense 
of  the  defendant  in  hunting  on  land  without  the  written 
permission  of  the  owner  and  in  contravention  of  the  stat- 

11  Commonwealth  v.  Mash,  7  Mete.  472.  "  139  N.  C.  588. 


12  CRIMINAL  LAW 

ute  was  merely  malum  prohibitum.  The  principal  impor- 
tance of  the  distinction  is  in  connection  with  the  crime  of 
manslaughter.^^  If  an  act  malum  in  se  results  by  acci- 
dent in  the  death  of  a  human  being,  the  offender  is  guilty  of 
manslaughter,  or,  perhaps,  if  the  act  is  serious  enough, 
murder.  If  the  act  is  merely  malum  prohibitum,  the  fact 
that  it  accidentally  results  in  death  will  not  make  thfe 
homicide  criminal. 

JURISDICTION  OVER  CRIME 

§  13.  Federal  and  State.  By  the  Federal  Constitution 
Congress  is  given  power  *'to  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current  coin  of  the 
United  States,^^  to  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the  law 
of  nations, "^^  and  *'to  declare  the  punishment  of  treason," 
with  the  proviso  that  ^'no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attained.  "^^  This  is  all  the  express  power  of 
general  criminal  legislation  given  to  Congress,  but  under 
the  power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  express  powers 
granted,  she  has  a  very  wide  implied  power,  and  has  exer- 
cised it  extensively.  Federal  criminal  legislation  has  been 
enacted  with  regard  to  smuggling,  illicit  liquor  manufac- 
ture, sending  improper  matter  through  the  mails,  rebating 
by  railroads  in  interstate  trafiic,  and  a  host  of  other  sub- 
jects. As  with  the  other  powers  of  Congress,  however, 
authority  in  each  case  must  be  expressly  or  impliedly 
found  in  the  Constitution.  The  residuary  power  of  crimi- 
nal legislation  lies  with  the  states,  and  this  residuary  power 
covers  the  great  bulk  of  common-law  crime. 

§  14.  No  Common-Law*  Jurisdiction  of  Crime  in  the 
Federal  Courts.  The  Supreme  Court  of  the  United  States  is 
the  only  United  States  court  which  derives  jurisdiction 
directly  from  the  Constitution,  and  nothing  is  expressly 

13  See  infra,  103,  is  id.  par.  10. 

i«  Art  I,  §  8,  par.  6.  le  Art.  III.,  §  3,  par.  2.. 


CRIMINAL  LAW  13 

said  of  criminal  jurisdiction.  The  other  Federal  courts 
derive  their  jurisdiction  from  Congressional  Act,  so  that, 
even  in  a  case  like  that  of  counterfeiting  money,  they  could 
not  take  jurisdiction  over  the  case  without  statutory 
authority.  A  much  more  extreme  claim  of  jurisdiction  in 
the  Circuit  court  was  made  in  the  case  of  United  States  v. 
Hudson,^^  where  the  defendant  was  prosecuted  in  the  Cir- 
cuit court  for  a  libel  on  the  President  and  Congress  of  the 
United  States.  No  express  power  to  punish  such  crimes  is 
given  to  Congress,  and,  although  the  court  did  not  decide 
that  Congress  would  not  have  the  implied  power  to  punish 
them,  it  held  that,  in  the  absence  of  congressional 
authority,  the  Circuit  court  was  without  jurisdiction.  It 
is  evident  that  the  court  was  also  of  opinion,  that  even  had 
Congress  conferred  all  the  judicial  power  of  the  United 
States  with  regard  to  crimes  on  the  Circuit  court,  the  lat- 
ter could  not  have  tried  even  such  a  case  as  that  of  coun- 
terfeiting, unless  Congress  had  made  statutory  provision 
for  its  punishment.  In  other  words,  the  court  was  of  opin- 
ion that  there  are  no  Federal  common-law  crimes.  It  is 
clear,  however,  that  in  construing  a  Federal  criminal 
statute,  the  courts  go  for  help  to  the  common-law 
authorities.^® 

§  15.  Theories  of  Criminal  Jurisdiction.  The  basis  of 
the  common-law  jurisdiction  of  crime  was  territorial.  This 
jurisdiction  extended  not  only  to  offenses  committed  within 
the  territory  by  persons  on  the  territory,  and  to  offenses 
committed  on  board  vessels  of  the  country,  but  also  to 
offenses  committed  within  the  territory  by  persons  outside, 
as,  for  instance,  where  a  shot  was  fired  on  one  side  of  the 
boundary  and  took  effect  on  the  other.  The  punishment  of 
piracy,  however,  has  never  been  based  on  territorial  juris- 
diction, as  its  scene  is  usually  the  high  seas,  and  it  is  con- 
sidered the  duty  of  every  nation  to  suppress  it.  Continental 
nations  have  gone  much  further  than  common-law  coun- 
tries in  the  exercise  of  nonterritorial  criminal  jurisdiction. 
They  not  infrequently  punish  their  citizens  for  crimes 

17  7  Cranch  32.  "  105  U.  S.  611. 


14  CEIMINAL  LAW 

committed  abroad,  even  though  within  the  territory  of 
civilized  nations,  and  punish  acts  committed  abroad  against 
the  safety  of  the  state,  whether  committed  by  foreigners 
or  citizens.  A  few  countries  have  attempted  to  punish  for- 
eigners for  crimes  committed  abroad  against  citizens  of 
the  country,  although  this  doctrine  has  been  attacked  by 
the  United  States.  No  country  has  claimed  jurisdiction  of 
all  offenses  wherever  and  by  whomsoever  committed.^^ 

§  16.  Territorial  Jurisdiction.  At  the  common  law,  if  a 
man  stands  in  one  state,  and  shoots  a  man  in  a  second  state, 
who  dies  of  his  wounds  in  a  third  state,  the  second  state 
has  jurisdiction  over  the  crime.  The  crime  is  considered  to 
have  been  committed  where  the  shot  takes  effect,  and  the 
locality  of  the  crime  within  the  jurisdiction  is  sufficient 
without  the  presence  of  the  criminal  there.  The  constitu- 
tional provision,2o  with  regard  to  the  interstate  rendition 
of  criminals,  however,  speaks  of  returning  the  person 
charged  with  crime  on  the  demand  of  the  executive  of  ' '  the 
state  from  which  he  fled, ' '  and  this  has  been  taken  to  mean, 
that  unless  the  person  so  charged  has  been  in  the  state 
where  the  crime  was  committed,  he  is  not  subject  to  inter- 
state rendition. 

An  analogous  case  to  that  of  the  man  shooting  across 
the  boundary,  is  that  of  Lindsey  v.  State,^^  in  which  Lind- 
sey,  while  in  Missouri,  had  forged  a  deed  to  land  in  Ohio, 
and  had  sent  it  to  a  real  estate  agent  in  Ohio,  through  whom 
it  was  uttered  and  published  by  a  sale  of  the  land,  in  per- 
fect good  faith  on  the  agent's  part.  The  court  held  that 
Lindsey  was  guilty  of  uttering  a  false  deed  in  Ohio.  It 
said : 

"The  crime  of  uttering  and  publishing  is  not  complete 
until  the  paper  comes  to  the  hands  of  some  other  person 
than  the  accused,  and  if  it  be  sent  by  mail  for  the  purpose 
of  being  there  used,  the  crime  is  not  committed  until  it  is 
received  by  the  person  to  whom  it  is  to  be  delivered.  It 
is  a  fundamental  principle  that  a  person  is  responsible, 

19  Art.  11.  Moore,  Int.  Law  Digest  243.  21  38  Ohio  Stat.  507. 

20  Art.  IV,  §  2,  par.  2. 


CRIMINAL  LAW  '  15 

criminally  for  acts  committed  by  his  procurement  as  well 
as  for  those  done  in  person.  The  inherent  power  of  the 
state  to  punish  the  uttering  and  publishing  of  forged  instru- 
ments within  its  territorial  limits,  without  regard  to  the 
place  where  the  forgery  was  committed,  or  the  purpose  was 
formed,  is  essential  to  the  protection  of  her  people.  It  is 
now  a  generally  accepted  principle  that  one  who  in  one 
country  or  state  employs  an  innocent  agent  in  another  to 
commit  a  crime,  is  liable  in  the  latter  country  or  state. ' ' 

But  as  an  original  proposition  it  would  not  have  been 
unreasonable  for  the  state  in  which  the  man  fired  the  shot, 
or  in  which  the  wounded  man  died,  to  have  been  given 
jurisdiction  over  the  crime.  In  some  states  jurisdiction  of 
this  kind  has  been  claimed  by  statute,  and  the  courts  have 
not  considered  these  statutes  unconstitutional  because  pro- 
ceeding on  other  than  common-law  principles.  Thus,  in 
Commonwealth  v.  Macloon,^^  where  the  defendants  had 
been  convicted,  under  a  statute,  of  the  manslaughter  of  a 
man  who  died  within  the  state  in  consequence  of  injuries 
inflicted  by  them  upon  him  in  a  British  merchant  ship  on 
the  high  seas,  the  court  said : 

*'The  existing  statute  clearly  manifests  the  intention  of 
the  legislature  to  punish  all  who  without  legal  justification 
cause  the  death  of  any  person  within  the  Commonwealth, 
wherever  the  first  wrongful  act  is  done,  or  of  whatever 
country  the  wrongdoer  is  a  citizen.  The  power  of  the  Com- 
monwealth to  punish  the  causing  of  death  within  its  juris- 
diction is  wholly  independent  of  the  power  of  the  United 
States,  or  of  the  nation  to  which  the  vessel  belongs,  to 
punish  the  inflicting  of  the  injury  upon  the  high  seas.  And 
upon  full  consideration,  the  court  is  unanimously  of  the 
opinion  that  there  is  nothing  in  the  Constitution  or  Laws 
of  the  United  States,  the  Law  of  Nations,  or  the  Constitu- 
tion of  the  Commonwealth,  to  restrain  the  legislature  from 
enacting  such  a  statute." 

And  in  People  v.  Botkin,^^  where  the  defendant  had  sent 
poisoned  candy  through  the  mail  from  California  to  one 
Elizabeth  Dunning,  in  Delaware,  and  the  latter  had  eaten 

22  101  Mass.  1.  2U32  Cal.  231. 


16  CEIMINAL  LAW 

thereof  and  died,  the  conviction,  in  California,  was  upheld 
under  a  statute  providing  for  the  punishment  of  ''all  per- 
sons, who  commit,  in  whole  or  in  part,  any  crime  within 
this  state." 

Another  case  frequently  arising  at  common  law  was  that 
of  the  thief  who  had  been  taken  with  the  stolen  goods  in 
his  possession  and  was  held  for  trial  in  a  county  where 
the  original  theft  had  not  taken  place.  It  was  one  of  the 
rules  of  the  common  law  that  a  man  had  a  right  to  trial 
by  a  jury  taken  from  the  county  where  the  alleged  crime 
had  been  committed,  but  this  was  gotten  around  by  the 
fiction  of  a  continuing  trespass,  whereby  the  wrongful  tak- 
ing was  considered  to  continue  in  every  county  into  which 
the  thief  carried  the  goods.  But  this  fiction  was  made  use 
of  in  cases  of  this  kind  in  England  merely  to  get  around 
the  rule  as  to  the  place  of  trial.  It  was  not  extended  to 
cases  where  the  original  theft  was  in  a  foreign  country,^^ 
or  in  places  where  the  common  law  did  not  apply,  such  as 
the  Island  of  Jersey,^^  for  it  was  felt  that  it  would  be  an 
unallowable  stretch  of  jurisdiction  to  try  a  man  for  an  act 
committed  where  a  different  set  of  laws  was  in  force. 

In  1857  this  question  came  before  the  courts  of  Massa- 
chusetts in  the  case  of  Commonwealth  v.  Holder,-^  where 
the  defendant  had  stolen  the  goods  in  Ehode  Island  and 
taken  them  into  Massachusetts  where  he  was  apprehended 
acd  tried.  The  majority  of  the  court  held  that  although 
Massachusetts  was  in  much  the  same  relation  to  Ehode 
Island  that  England  was  to  the  Island  of  Jersey,  in  that 
different  sets  of  laws  prevailed  in  the  two  states,  yet  that 
in  earlier  times  it  had  not  been  unreasonable  to  regard  the 
various  colonies  as  in  the  relation  to  each  other  of  English 
counties ;  that,  accordingly,  Massachusetts  had  so  regarded 
them,  at  least  in  so  far  as  this  rule  was  concerned,  and  that 
this  had  remained  the  law  of  Massachusetts  after  the 
Eevolution.  A  similar  result  was  reached  in  Ohio,  but  in 
Stanley  v.  State,^^  the  Supreme  Court  of  the  State  refused 

24  Eegina  v.  Carr,  15  Cox  C.  C.  131n.       ^^e  9  Gray  7. 

25  Kex  V.  Powers,  1  Moody  C.  C.  349.     -'7  24  Ohio  Stat.  166. 


CRIMINAL  LAW  17 

to  extend  the  rule  so  as  to  punish  a  thief  who  had  stolen 
goods  in  Canada  and  then  brought  them  with  him  into  the 
state.  These  cases  probably  represent  the  weight  of 
authority  at  common  law,  although  some  states  have  fol- 
lowed the  English  practice  more  closely  and  refused  to 
punish  the  thief  coming  from  another  state,  although  where 
this  has  been  the  case,  the  law  has  frequently  been  brought 
into  line  with  the  Massachusetts  decision  by  statute. 
Statutes  have  even  gone  still  further  and  claimed  jurisdic- 
tion where  the  goods  are  brought  from  a  foreign  country, 
and  there  does  not  seem  to  be  much  question  but  that  they 
are  constitutional. 

§  17.  Non-Territorial  Jurisdiction.  The  right  to  punish 
citizens  of  a  state  for  crimes  committed  abroad  has  some- 
times been  recognized,^®  but  it  has  not  been  exercised  except 
where  the  offense  has  been  committed  in  barbarous  lands, 
and  is  so  opposed  to  common-law  principles  that  it  is  not 
likely  to  be.  But  in  the  case  of  Hanks  v.  State,^®  the  defend- 
ant was  tried  for  the  forgery  of  a  transfer  of  a  land  cer- 
tificate for  land  in  the  State  of  Texas,  although  all  the  acts 
constituting  the  forgery  had  been  committed  in  Louisiana. 
Under  the  common  law  the  Texas  courts  would  not  have 
had  jurisdiction  of  tlie  offense,  but  there  was  a  Texas 
statute  providing  for  the  trial  of  just  such  cases,  and  the 
court  held  the  statute  constitutional  on  the  ground  that 
''when  this  forgery  was  committed  in  Louisiana,  eo  instanti 
(at  that  instant)  a  crime  was  committed  against,  and 
injury  done  to,  the  State  of  Texas,  because  it  affected  title 
to  lands  within  her  sovereignty." 

28  2  Haywood  lOQ-  2913  Tex.  App.  289. 


CHAPTER  n 

THE  CRIMINAL  ACT 

§  18.  Necessity  of  an  Act.  The  common  law  punishes 
overt  acts,  and  not  intentions  or  beliefs,  however  wicked 
they  may  be.  And  although  in  Rex  v.  Sutton,^  it  was  held 
that  having  in  one's  possession  certain  stamps  capable  of 
making  an  impression  of  part  of  one  side  of  a  coin,  with 
the  intention  of  making  such  an  impression,  was  a  common- 
law  misdemeanor  on  the  ground  that  "the  having"  might 
be  considered  an  act,  yet  this  was  overruled  in  Rex  v. 
Heath,2  and  in  a  later  case,^  it  was  said : 

*  *  The  law  will  not  take  notice  of  an  intent  without  an  act. 
Possession  is  no  such  act.  But  procuring,  with  the  intent 
to  commit  the  misdemeanor,  is  the  first  step  towards  the 
committing  of  the  misdemeanor. ' ' 

But  knowingly  having  in  possession  counterfeiting  tools 
and  the  like  is  often  made  a  crime  by  statute. 

§  19.  Omission  as  an  Act.  It  is  hard  to  think  of  an 
omission  as  an  act,  and  perhaps,  rather  than  speak  of  acts 
of  omission,  it  would  be  better  to  say  that  although  as  a 
rule  the  common  law  punishes  only  positive  acts,  yet  it  has 
come  to  regard  certain  wrongs  as  criminal  which  involve 
not  positive  action,  but  merely  the  non-performance  of 
legal  duty.  Thus  in  the  case  of  Regina  v.  Instan,*  the 
defendant,  an  unmarried  woman,  aged  thirty  or  forty  years, 
had  been  living  with,  and  in  dependence  on,  her  aunt,  a 
woman  of  some  seventy-three  years  of  age.  The  latter, 
shortly  before  her  death,  suffered  from  gangrene  in  the  leg 
which  rendered  her,  during  the  last  ten  days  of  her  life, 
unable  to  procure  assistance,  and  yet  the  niece  does  not 


1  Hardwicke  370.  3  Dugdale  v.  R.  1  El.  &  B.  435. 

a  Euss.  &  Ry.  184.  *  1  Q.  B.  450,  1893. 


18 


CEIMINAL  LAW  19 

appear  to  have  given  her  any  of  the  food  supplied  to  the 
house  by  tradespeople,  and  certainly  did  not  give  or  pro- 
cure any  medical  or  nursing  attendance  to  or  for  her,  or 
give  notice  to  any  neighbor  of  her  condition  or  wants, 
although  she  had  abundant  opportunity  and  occasion  to 
do  so.  The  death  of  the  aunt  was  substantially  accelerated 
by  this  neglect,  want  of  food,  of  nursing,  and  of  medical 
attendance. 

The  niece  was  found  guilty  of  manslaughter  and  the  con- 
viction was  affirmed.    Lord  Coleridge  said : 

**  There  can  be  no  question  in  this  case  that  it  was  the 
clear  duty  of  the  prisoner  to  impart  to  the  deceased,  so 
much  as  was  necessary  to  sustain  life,  of  the  food  which 
she  from  time  to  time  took  in,  and  which  was  paid  for  by 
the  deceased's  own  money  for  the  purpose  of  the  main- 
tenance of  herself  and  the  prisoner;  it  was  only  through 
the  instrumentality  of  the  prisoner  that  the  deceased  could 
get  the  food.  There  was,  therefore,  a  common-law  duty 
imposed  upon  the  prisoner  which  she  did  not  discharge. 

''Nor  can  there  be  any  question  that  the  failure  of  the 
prisoner  to  discharge  her  legal  duty  at  least  accelerated  the 
death  of  the  deceased,  if  it  did  not  actually  cause  it.  There 
is  no  case  directly  in  point;  but  it  would  be  a  slur  upon, 
and  a  discredit  to,  the  administration  of  justice  in  this  coun- 
try if  there  were  any  doubt  as  to  the  legal  principle,  or  as 
to  the  present  case  being  within  it.  The  prisoner  was  under 
a  moral  obligation  to  the  deceased  from  which  arose  a  legal 
duty  toward  her;  that  legal  duty  the  prisoner  has  willfully 
and  deliberately  left  unperformed,  with  the  consequence 
that  there  has  been  an  acceleration  of  the  death  of  the 
deceased  owing  to  the  non-performance  of  that  legal  duty. 
It  is  unnecessary  to  say  more  than  that,  upon  the  evidence, 
this  conviction  was  most  properly  arrived  at.'' 

The  most  familiar  cases  of  criminal  omission  at  the  com- 
mon law,  however,  are  those  where  a  parent  or  master 
fails  in  his  duty  to  provide  for  the  child  or  apprentice  of 
tender  years  in  his  care,  and  causes  its  death;  or  where  one 
under  a  legal  duty  to  the  public  fails  in  his  duty  and  death 
results.  But  the  tendency  is  to  regard  all  negligence  by 
those  who  have  entered  upon  an  employment  or  undertak- 


30  CEIMINAL  LAW 

ing  as  misfeasance  or  active  wrongdoing,  rather  than  as 
non-feasance,  even  though  the  neglect  in  the  particular  case 
may  have  consisted  of  aji  omission. 

Statute  law,  however,  has  gone  much  further  than  the 
common  law  in  making  the  failure  to  provide,  and  gen- 
erally, the  non-performance  of  legal  duty,  criminal.  In 
many  cases,  however,  statutes  have  provided  for  the 
enforcement  of  legal  duties  by  criminal  process,  where  the 
end  aimed  at  was  not  so  much  punishment  as  the  per- 
formance of  the  duty,  and  where,  despite  the  process,  the 
non-performance  of  the  duty  was  essentially  a  civil  wrong 
rather  than  criminal.  An  instance  of  this  is,  the  duties 
imposed  on  the  old  English  counties,  and  the  process  by 
indictment  provided  for  their  non-performance. 

§  20.  Means  of  Commission.  In  an  old  case,  Lord  Chief 
Justice  Eaymond  said : 

*' There  is  no  particular  way  of  killing  another  that  is 
necessary  to  constitute  a  murder;  but  the  committing  of 
murder  is  as  various  as  the  several  ways  of  putting  an  end 
to  human  life. ' '  ^ 

As  we  have  seen,  the  crime  may  be  committed  through 
an  innocent  agent,  as  where  a  man  was  convicted  for  utter- 
ing a  forged  deed  in  Ohio  through  the  instrumentality  of 
an  innocent  agent  there ;  and  the  innocent  agent  may  be  the 
person  against  whom  the  crime  is  directed,  as  where  poi- 
soned candy  is  sent  through  the  mails  and  the  innocent 
victim  completes  the  crime  himself  by  eating  the  candy. 
This  was  carried  so  far  at  the  common  law  that  it  was 
held  that  the  machinery  of  justice  could  itself  be  the  inno- 
cent agent  by  which  the  crime  was  committed,  and  in  the 
case  of  Eex  v.  McDaniel,®  the  defendants  were  convicted  of 
murder  for  having  maliciously  caused  one  Joshua  Kidden 
to  be  ''unjustly  apprehended,  falsely  accused,  tried,  con- 
victed, and  executed,  well  knowing  him  to  be  innocent  of 
the  fact  laid  to  his  charge,  with  an  intent  to  share  to  them- 
selves the  reward, ' '  and  although  they  were  afterwards  dis- 

oBeale's  Cases  292.  6  Leach  (4th  ed.)  44. 


CRIMINAL  LAW  21 

charged,  this  was  apparently  from  other  than  purely  legal 
reasons. 

Harsh  or  unldnd  treatment,  not  amounting  to  a  threat  of 
physical  violence,  although  it  may  have  "broken  the  heart" 
of  the  victim,  will  not  make  the  wrongdoer  a  criminal.  In 
some  states,  however,  it  has  been  held,  that  where  one  per- 
son puts  another  in  reasonable  apprehension  of  immediate 
physical  injury,  the  wrongdoer  is  guilty  of  a  criminal 
assault,  even  although  the  fright  was  the  only  injury 
received,  and  although  from  utter  inability  to  carry  out 
the  threat  and  lack  of  intention  on  the  part  of  the  wrong- 
doer, the  latter  could  not  have  been  held  for  an  attempt. 
But  the  authorities  are  divided  on  this  point.'^  Where  the 
reasonable  apprehension  immediately  results  in  physical 
injury,  the  one  causing  the  apprehension  may  be  held  crimi- 
nally responsible  for  the  result;  but  the  general  rule  is 
that  where  such  physical  injury  occurs  at  some  subsequent 
time  as  a  consequence  of  the  fright,  the  connection  between 
the  original  act  and  the  final  result  is  too  remote  to  hold 
the  wrongdoer  for  it,  although  there  may  be  an  exception 
to  this  when  the  one  frightened  and  ultimately  injured  is  a 
child  of  tender  years.^ 

§  21.  Remoteness.  It  is  conceivable  that  a  man  might 
be  so  frightened,  because  of  letters  threatening  him  with 
death,  as  to  finally  shoot  himself,  but  the  law  would  hold  it 
to  be  his  voluntary  act,  and  would  not  consider  the  threat- 
ener  guilty  of  the  homicide.  It  would  not  be  such  a  step 
as  the  law  holds  that  a  reasonable  man  would  take.  But 
in  the  case  of  Eegina  v.  Pitts,®  where  the  defendant  was 
indicted  for  the  murder  of  a  man  who  had  been  found 
drowned,  and  it  was  uncertain  whether  the  defendant  had 
pushed  him  into  the  water,  or  he  had  thrown  himself  into 
the  river  to  escape  further  violence,  the  court  said : 

"A  man  may  throw  himself  into  a  river  under  such  cir- 
cumstances as  render  it  not  a  voluntary  act;  by  reason  of 

»  See  infra,  §  81.  » I  C.  &  M.  284. 

•  E.  V.  Towers,  12  Cox  C.  C.  530. 


22  CRIMINAL  LAW 

force  applied  either  to  the  body  or  the  mind.  It  becomes 
then  the  guilty  act  of  him  who  compelled  the  deceased  to 
take  the  step.  But  the  apprehension  must  be  of  immediate 
violence,  and  well-grounded,  from  the  circumstances  by 
which  the  deceased  was  surrounded;  not  that  you  must  be 
satisfied  that  there  was  no  other  way  of  escape,  but  that  it 
was  such  a  step  as  a  reasonable  man  might  take.  Here,  all 
the  circumstances  show  that,  even  if  the  deceased  did  throw 
himself  into  the  river,  it  must  have  been  from  circum- 
stances arising  out  of  a  scuffle  with  the  prisoner  or  some 
other  person,  or  from  apprehension  of  further  violence. ' ' 

It  is  not  always  necessary  that  the  wrongdoer  should 
have  been  able  as  a  reasonable  man  to  foresee  the  conse- 
quences of  his  illegal  act  in  order  that  he  should  be  held 
liable  for  them.  Thus  in  the  case  of  State  v.  0  'Brien,^*^  the 
defendant  had  been  convicted  of  manslaughter,  and  it  was 
urged  that  but  for  the  heart  trouble  with  which  the 
deceased  had  been  afflicted  the  assault  by  the  defendant 
would  not  have  resulted  in  his  death;  but  the  court  held 
that  the  ignorance  of  the  physical  condition  of  deceased 
on  the  part  of  the  defendant  would  not  excuse  him  from 
liability  for  the  homicide.  The  chance  of  the  poor  physical 
condition  of  the  other  party  was  one  which  he  took  in  mak- 
ing the  assault. 

A  man  may  even  be  held  criminally  responsible  for  acts 
not  necessarily  illegal,  but  the  natural  consequences  of 
which,  under  the  circumstances  of  the  case,  will  be  to  pro- 
duce an  unlawful  act  by  other  persons.  Thus,  in  the  case 
of  Wise  V.  Dunning,^^  the  defendant  had  been  put  under 
bonds  to  keep  the  peace  because  of  certain  violent  attacks 
upon  the  Catholics  which  he  had  been  making  on  the  streets 
of  Liverpool,    Lord  Alverstone  said : 

**  Magistrates  are  only  doing  their  duty  when  they  have 
regard  to,  and  make  themselves  acquainted  with,  the  char- 
acter of  the  population  amongst  whom  they  have  to  admin- 
ister justice;  and  in  considering  the  natural  consequences 
of  a  man's  acts  who  has  used  insulting  language  in  the  pub- 

10  81  Iowa  88.  n  1  K.  B.  167,  1902. 


CRIMINAL  LAW  23 

lie  streets  towards  persons  of  a  particular  religion,  the 
magistrates  are  bound  to  take  into  consideration  the  fact 
that  there  is  a  large  body  of  those  persons  in  the  town. ' ' 

But  acts,  otherwise  perfectly  lawful,  do  not  necessarily 
become  unlawful  merely  because  they  are  almost  certain 
to  occasion  unlawful  acts  on  the  part  of  others.  Thus  in 
Beatty  v.  Gillbanks,^^  it  was  held  that  it  was  not  criminal 
for  the  Salvation  Army  to  hold  their  street  meetings,  not- 
withstanding the  fact  that  they  were  almost  certain  to  be 
made  the  object  of  violent  attacks  by  a  so-called  Skeleton 
Army. 

A  case  not  infrequently  arising  is  one  where  a  man  is 
assaulted  and  dangerously  wounded,  but  with  proper  medi- 
cal treatment  would  recover  from  the  wound.  On  this 
point  the  well-established  rule  of  the  common  law  would 
seem  to  be,  that  if  the  wound  were  a  dangerous  wound,  that 
is,  calculated  to  endanger  or  destroy  life,  and  death  ensued 
therefrom,  it  is  sufficient  proof  of  murder  or  manslaughter ; 
and  that  the  person  who  inflicted  it  is  responsible,  though  it 
may  appear  that  the  deceased  might  have  recovered  if  he 
had  taken  proper  care  of  himself,  or  submitted  to  a  surgi- 
cal operation,  or  that  unskillful  or  improper  treatment 
aggravated  the  wound  and  contributed  to  the  death,  or 
that  death  was  immediately  caused  by  a  surgical  operation, 
rendered  necessary  by  the  condition  of  the  wound.^^  But, 
subject  to  the  above  explanation,  the  wound  must  be  the 
cause  of  death.  If  the  wound  be  slight,  and  the  surgeon 
be  so  negligent  that  the  wounded  man  gets  blood  poisoning 
from  improperly  cared  for  surgical  instruments,  it  is  clear, 
that  although  without  the  wound  the  man  would  not  have 
died,  it  is  the  surgeon  who  is  responsible  for  the  death,  and 
not  the  one  committing  the  assault.  In  such  a  case  the 
wound  may  be  the  occasion  of  the  death,  but  it  is  not  its 
cause. 

§  22.  Contributing  Acts.  Where  a  number  of  persons, 
in  pursuance  of  a  common  design,  commit  a  criminal  act, 

12  15  Cox  C.  C.  138.  18  Commonwealth  v.  Hackett,  2  Allen  136. 


24  CRIMINAL  LAW 

each  is  responsible  for  the  part  played  by  the  others.  The 
act  of  each  is  the  act  of  all.  And  the  common  design  need 
not  be  a  carefully  hatched  plot,  but  may  be  inferred  from 
the  spontaneous  aid  given  to  and  received  by  another  in 
a  fight.  But  when  there  is  no  such  common  design,  and  a 
person  receives  successive  wounds  from  persons  acting 
independently  of  each  other,  and  dies  from  one  or  more  of 
the  wounds,  it  is  sometimes  a  difiScult  matter  to  fiix  the 
criminal  responsibility  for  the  homicide.  It  is  clear  that 
although  the  first  wound  may  have  been  mortal,  yet  if  the 
second  wound  were  the  sole  cause  of  the  death  at  the  time 
it  occurred,  the  giver  of  the  first  wound  is  not  guilty  of  the 
homicide.  Thus,  if  a  man,  while  lying  mortally  wounded, 
is  shot  and  killed  by  a  person  acting  independently  of  the 
one  who  gave  the  first  wound,  the  latter  is  not  guilty  of  the 
homicide.  But  it  would  seem  that  if  the  first  wound  were 
mortal,  and  contributed  to  the  death  at  the  time  it  occurred 
both  parties  might  be  held  for  the  homicide,  even  though 
without  the  second  wound  the  death  would  have  occurred 
somewhat  later. ^^  Where  one  of  the  wounds  was  the  sole 
cause  of  death  at  the  time  it  occurred,  but  it  is  impossible 
to  say  which  person  inflicted  the  wound,  neither  can  be  held 
for  the  homicide  in  the  absence  of  common  design.^^ 

§  23.  Preparation.  The  statutory  law  makes  some  pre- 
paratory acts  criminal  in  themselves;  for  instance,  the 
procuring  of  tools  for  the  purpose  of  counterfeiting,  and  of 
indecent  pictures  with  intent  to  publish  them,  but  aside 
from  exceptional  instances  of  this  kind,  the  law  does  not 
consider  as  criminal  the  preparation  for  crime  as  dis~ 
tinguished  from  the  attempt  to  commit  crime.  In  the  case 
of  State  V.  Hurley,^^  it  was  shown  that  in  pursuance  of  an 
arrangement  with  the  accused,  .one  Tracy  had  attempted  to 
get  a  bundle  of  hack  saws  to  the  accused  by  throwing  it  to 
him  as  he  sat  behind  the  bars  at  an  open  window,  and  that 
the  accused  reached  through  the  bars  and  got  the  bundle 
into  his  hands,  but  was  ordered  at  that  moment  by  the 

14  People  V.  Lewis,  124  Cal.  551.  w  79  Vt.  28. 

15  E.  V.  Davis,  15  Cox  C.  C.  174. 


CRIMINAL  LAW  25 

jailer  to  drop  it  and  did  so.    He  was  charged  with  attempt- 
ing to  break  open  the  jail,  but  the  court  said : 

' '  The  act  in  question  here  is  the  procuring  by  a  prisoner 
of  tools  adapted  to  jail  breaking.  That  act  stands  entirely 
unconnected  with  any  further  act  looking  to  their  use.  It 
is  true  that  the  respondent  procured  them  with  the  design 
of  breaking  jail.  But  he  has  not  put  that  design  into  execu- 
tion, and  might  never  have  done  so.  He  had  procured  the 
means  of  making  the  attempt,  but  the  attempt  itself  was 
still  in  abeyance.  Its  inauguration  depended  upon  the 
choice  of  an  occasion  and  a  further  resolve.  That  stage 
was  never  reached,  and  the  procuring  of  the  tools  remained 
an  isolated  act.  To  constitute  an  attempt,  a  prefatory  act 
of  this  nature  must  be  connected  with  the  accomplishment 
of  the  intended  crime  by  something  more  than  a  general 
design. '  *    The  accused  was  accordingly  discharged. 

So,  it  has  been  held  that  a  man  in  Alaska  who  wrote  a 
letter  to  a  firm  of  liquor  dealers  in  San  Francisco  request- 
ing them  to  ship  one  hundred  gallons  of  whiskey  to  Alaska 
was  not  guilty  of  an  attempt  to  introduce  spirituous  liquors 
there,^'^  and  that  the  making  up  of  a  false  invoice  at  the 
place  of  exportation  with  intent  to  defraud  the  revenue 
was  not  an  offense  if  not  followed  up  by  using  it,  or 
attempting  to  use  it.^® 

§  24.  Attempts.  An  attempt  to  commit  a  crime  is  itself 
a  crime.  But  an  attempt  means  something  more  than  a 
mere  intent,  and,  as  we  have  seen,  something  more  than 
mere  preparation.  Just  where  to  draw  the  line  between  an 
attempt  and  preparation  on  the  one  hand,  and  between  an 
attempt  and  the  completed  crinie  on  the  other,  is  fre- 
quently a  difficult  matter.  Thus,  the  case  just  given  must 
have  appealed  to  many  at  first  blush  as  an  attempt  at  jail- 
breaking  ;  and  the  case  of  Rex  v.  "Walsh,^®  where  the  defend- 
ant was  charged  with  the  larceny  of  a  leather  bag  which 
he  had  succeeded  in  lifting  from  the  bottom  of  the  boot  of 
a  coach,  but  which  he  and  his  confederates  were  endeavor- 

iT  U.  S.  V.  Stephens,  8  Sawyer  116.  i»  1  Moody  C.  Cas.  14. 

18  U.  S.  V.  Riddle,  5  Cranch  311. 


26  CRIMINAL  LAW 

ing  to  pull  out  of  the  boot  when  he  was  arrested,  will  appear 
to  many  as  a  mere  attempt  to  steal,  and  yet  his  conviction 
of  the  completed  crime  was  affirmed.  But  the  difficulty  of 
drawing-  this  line  is  evidently  one  that  inheres  in  the  sub- 
ject. The  line  must  be  more  or  less  an  arbitrary  one,  and 
in  each  case  resort  must  be  had  to  closely  analogous  cases. 
In  fact,  the  endeavor  to  lay  down  rules  of  easy  application 
with  regard  to  attempts  is  largely  responsible  for  the  undue 
artificiality  of  the  law  with  regard  to  them,  but  such  as  they 
are,  these  rules  must  be  considered. 

§  25.  Proximity  to  the  Completed  Crime.  There  are  cer- 
tain acts  which  may  not  incorrectly  be  called  attempts  in  a 
popular  sense,  but  which  are  so  far  removed  from  the  com- 
pleted crime  that  few  would  think  of  them  as  criminal. 
Thus,  in  the  stock  case  of  a  man  shooting  at  a  post,  think- 
ing the  post  to  be  an  enemy,  few  would  think  of  holding 
the  man  for  an  attempt  to  kill  unless  there  were  other  cir- 
cumstances to  bring  the  shooting  closer  to  the  completed 
crime.  Nor  would  a  man  be  guilty  of  an  attempt  at  illegal 
voting  who  had  voted  thinking  he  was  under  age,  but  who 
was,  as  a  matter  of  fact,  of  full  age.  Nor  would  a  man  be 
guilty  of  an  attempt  to  steal  who  took  an  umbrella  with 
the  intention  of  stealing  it,  which  turned  out  fo  be  his  own. 
But  there  have  probably  been  few  prosecutions  for  acts  of 
this  kind,  and  perhaps  the  most  that  can  be  gathered  from 
them  is,  that  for  an  attempt  to  be  criminal,  the  act  alleged 
must  approximate  with  considerable  closeness  to  the  com- 
pleted crime. 

§26.  Not  Necessarily  the  Last  Step.  For  the  act  to 
constitute  an  attempt  it  need  not  be  '^the  last  proximate 
act  to  the  consummation  of  the  crime  in  contemplation  ".^^ 
Thus  in  the  case  just  quoted  from,  the  prisoner  had  taken 
the  prosecutrix  into  a  stable  and  had  gone  far  towards  the 
completion  of  a  rape,  but  had  voluntarily  abandoned  his 
purpose  before  the  consummation  of  the  crime,  but  the 
court  held  that  the  fact  of  abandonment  did  not  prevent 
his  acts  from  being  a  criminal  attempt.    It  seems  clear  that 

20  Glover  v.  Commonwealth,  86  Va.  382. 


CRIMINAL  LAW  27 

if  he  had  been  stopped  by  a  third  party,  the  fact  that  he  had 
not  taken  the  last  step  i3efore  the  completion  of  the  crime 
would  not  have  prevented  his  acts  from  constituting  an 
attempt,  and  there  appears  to  be  no  good  reason  why  his 
voluntary  abandonment  should  have  changed  the  character 
of  what  he  had  already  done. 

§27.  Possibility  of  the  Completed  Crime.  From  the 
hypothetical  cases  already  given  it  has  sometimes  been 
held  that  there  can  be  no  attempt  where  the  completed 
crime  is  impossible.  And  so  in  Eegina  v.  Collins,^^  where 
the  prisoner  was  indicted  for  attempting  to  pick  a  woman's 
pocket,  and  had  gone  so  far  as  to  get  his  hand  into  the 
pocket,  but  had  been  unsuccessful  because  there  was  noth- 
ing in  the  pocket,  it  was  held  that,  as  the  completed  act  was 
impossible,  there  could  be  no  attempt.  But  this  decision 
shows  the  danger  of  generalizing  from  hypothetical  cases, 
and  has  been  overruled  in  England  and  has  found  little  or 
no  following  in  this  country.  A  less  objectionable  generali- 
zation from  those  cases  which  has  been  advanced  is  that 
there  is  no  criminal  attempt  where  the  act  which  it  was 
intended  to  commit  would  not  have  been  a  crime  if  it  had 
been  consummated,  as  where  a  wife  filches  from  her  hus- 
band's pocket  during  the  night. 

A  proper  application  of  this  principle  would  be  the  case 
of  a  foreigner  coming  to  this  country  and  attempting  to  do 
an  act  criminal  in  his  own  country,  and  which  he  thought 
criminal  in  this,  but  which,  in  fact,  was  not.  Here  the  act 
in  contemplation  would  not  be  a  crime,  nor  would  his  belief 
that  it  was,  make  the  attempt  criminal.  But  in  the  case 
where  a  man  took  an  umbrella  which  turned  out  to  be  his 
own,  or  the  case  where  the  man  thought  he  was  voting  while 
under  age,  is  it  not  entirely  arbitrary  to  say  that  the  act 
in  contemplation  was  the  taking  of  the  umbrella  before 
him,  and  not  the  taking  of  some  one  else's  umbrella,  or  that 
the  act  in  contemplation  was  the  mere  voting,  and  not  the 
voting  under  age? 

But  this  doctrine  was  applied  in  the  late  case  of  People 

21 9  C!ox  C.  C.  497. 


28  CRIMINAL  LAW 

V.  Jaffe,22  where  the  defendant  was  accused  of  attempting 
to  receive  stolen  property,  knowing  it  to  have  been  stolen, 
but  where  the  property  had,  in  fact,  lost  its  character  as 
stolen  property.  The  court  said  that  the  act  in  contempla- 
tion was  the  purchase  of  the  goods  which  were  brought  to 
his  place  for  sale;  that,  as  under  the  circumstances  of  the 
case,  this  could  not  have  amounted  to  a  receiving  of  stolen 
goods,  the  attempt  was  not  criminal.  But,  is  it  not  fanciful 
to  say  that  such  was  the  act  in  contemplation,  rather  than 
the  reception  of  stolen  goods  knowingly?  The  completed 
crime  was  impossible,  but  one  may  attempt  the  impossible, 
and  it  is  objectionable  to  deny  criminality  to  an  attempt  on 
that  account,  whatever  guise  the  reasoning  may  take. 

§  28.  Present  Ability.  But  the  doctrine  that  the  act  con- 
templated must  be  a  crime  has  one  advantage  over  the  older 
theory  that  the  completed  crime  must  be  possible  of  per- 
formance. It  does  not  deny  that  a  person  may  be  guilty  of 
a  criminal  attempt  though  himself  lacking  in  capacity  to 
perform  the  completed  crime.  It  fixes  its  eye  not  upon  the 
actor,  but  upon  the  thing  or  person  acted  upon.  One  appli- 
cation of  the  older  theory  was  that  if  one  were  of  an  age 
when  the  law  conclusively  presumed  him  incapable  of  rape, 
he  could  not  even  be  guilty  of  an  attempt  to  commit  rape, 
and  in  this  particular  class  of  cases  this  is  still  the  gen- 
eral rule  in  this  country.  In  some  states  this  present  ability 
is  a  requisite  of  all  attempts,  and  the  principle  has  even 
been  embodied  in  statutes,  but  the  better  opinion  would 
appear  to  be  that  of  Mr.  Justice  Holmes  in  Commonwealth 
v.  Kennedy,^^  where  it  was  claimed  that  the  fact  that  it  had 
not  been  alleged  that  the  dose  of  poison  was  large  enough 
to  kill  was  fatal  to  a  conviction  for  attempt  to  poison.  This 
was  denied,  and  the  court  held  that,  at  any  rate  in  the  case 
of  an  intended  poisoning,  the  mere  fact  that  the  amount  of 
poison  was  insufficient  to  kill  would  not  prevent  the  act 
being  a  criminal  attempt.  Perhaps  as  helpful  a  generaliza- 
tion as  can  be  made  as  to  attempts  was  made  by  the  learned 
Justice  when  he  said : 

«2 185  N.  Y.  497.  28 170  Mass.  18. 


CEIMINAL  LAW  29 

**As  the  aim  of  the  law  is  not  to  punish  sins,  but  is  to 
prevent  certain  external  results,  the  act  done  must  come 
pretty  near  to  accomplishing  that  result  before  the  law  will 
notice  it.'* 

§  29.  Conspiracy.  A  conspiracy  to  commit  a  crime  is, 
at  the  common  law,  in  itself  a  crime,  although  no  overt  act 
be  committed  in  pursuance  of  the  conspiracy;  but  by 
statute  some  states  require  an  overt  act  in  specific  cases. 
It  is  under  conspiracy  statutes  that  prosecutions  of  trusts 
and  combinations  in  recent  years  have  been  conducted ;  also 
of  labor  leaders  in  conducting  strikes  unlawfully.  So  broad 
and  indefinite  is  this  crime  in  its  definition,  that  public 
prosecutors  have  found  an  indictment  for  conspiracy  the 
short  and  quickest  method  of  securing  evidence  of  overt 
criminal  acts. 

§  30.  Solicitation.  A  solicitation  to  commit  a  felony  is 
in  itself  a  crime,  but  not  every  solicitation  to  commit  a  mis- 
demeanor is  such.  Thus,  in  Commonwealth  v.  Willard,^* 
where  the  defendant  was  charged  with  inducing  a  man  to 
sell  liquor  to  him  contrary  to  the  statute,  and  the  statute 
spoke  only  of  selling,  the  court  said : 

"We  know  of  no  case  where  an  act,  which,  previously  to 
the  statute,  was  lawful  or  indifferent,  is  prohibited  under 
a  small  specific  penalty,  and  where  the  soliciting  or  inducing 
another  to  do  the  act,  by  which  he  may  incur  the  penalty,  is 
held  to  be  itself  punishable.  Such  a  case  may,  perhaps, 
arise,  under  peculiar  circumstances,  in  which  the  principle 
of  law,  which  in  itself  is  a  highly  salutary  one,  will  apply; 
but  the  courts  are  all  of  opinion  that  it  does  not  apply  to 
the  case  of  one  who,  by  purchasing  liquor  of  an  unlicensed 
person  does,  as  far  as  that  act  extends,  induce  that  other  to 
sell  in  violation  of  the  statute." 

But  it  is  clear  that  it  is  not  only  solicitations  to  felony 
that  are  criminal,  and  in  Commonwealth  v.  Hutchinson,^" 
where  the  defendant  was  charged  with  soliciting  one  to 
bum  a  store  building,  which  was  a  misdemeanor,  the  court 

2*  22  Pick.  476.  2B  6  Sup.  Ct.  (Pa.)  405. 


30  CRIMINAL  LAW 

toTiclied  on  tlie  artificial  character  of  the  distinction  between 
felonies  and  misdemeanors,  and  said : 

**  Argument  is  scarcely  needed  to  demonstrate  that  the 
solicitation  charged  in  the  present  case  is  of  a  character  to 
injuriously  affect  public  society  and  the  public  peace  and 
economy.  Except  solicitations  to  murder  and  riot,  nothing 
is  more  calculated  to  disorder  and  terrorize  society  than 
incitements  to  incendiarism.  Such  incitement  is  a  direct 
blow  at  security  of  property,  and  even  of  life.  It  must, 
therefore,  be  pronounced  an  indictable  offense. '^ 


CHAPTER  III 
CRIMINAL  INTENT 

§  31.  The  Guilty  Mind.  It  is  a  principle  of  the  common 
law  that  for  an  act  to  be  criminal  it  must  be  done  with  a 
guilty  mind.  No  such  disgrace  would  attach  itself  to  the 
criminal  if  it  were  not  so.  It  is  not  enough  that  he  should 
have  caused  injury  to  another.  That  may  possibly  make 
him  liable  to  respond  in  damages,  however  careful  and 
faultless  he  may  have  been,  but  in  addition,  there  must  be 
an  element  of  guilt,  concurring  with  the  act,  to  make  him 
a  criminal.  It  is  not  sufficient  that  the  wrongful  act  should 
have  been  done  by  a  servant  for  his  benefit,  but  without 
his  knowledge,  and  that  he  should  afterwards  have  ratified 
it.  This  would  be  sufficient  to  establish  his  civil  liability, 
but  as  his  guilt  in  ratifying  the  act  would  be  subsequent 
to  the  act,  the  act  and  the  guilty  mind  would  not  concur, 
and  he  would  not  be  a  criminal. 

§  32.  Motive.  But  there  may  be  a  guilty  mind,  though 
the  motive  behind  the  act  may  seem  to  the  individual,  and 
even  to  history,  of  the  best.  Thus,  many  of  the  martyrs  have 
suffered  because  they  did  acts  which  they  knew  to  be  con- 
trary to  the  law.  History  has  judged  their  motives  to  have 
been  of  the  highest,  yet  they  had  done  knowingly,  what  the 
criminal  law  had  forbidden,  and  that  in  the  eye  of  the  law 
constitutes  a  guilty  mind.  The  anarchist  in  killing  a  high 
official  may  not  be  moved  by  malice  or  spite  towards  the 
individual.  His  object  may  be  to  bring  about  a  social 
millennium.  In  his  mind's  eye,  perhaps,  he  is  taking  a 
place  among  the  martyrs  of  history,  but  the  law  does  not 
regard  the  motive — it  knows  not  the  principle  that  the 
end  justifies  the  means — and  it  considers  him  to  have  had 
a  guilty  mind  who  has  knowingly  done  an  act  forbidden  by 
the  criminal  law. 

31 


S2  CRIMINAL  LAW 

Thus,  in  the  case  of  Reynolds  v.  United  States/  where 
the  defendant,  a  Mormon  of  the  Territory  of  Utah,  was 
charged  with  violating  the  laws  against  polygamy,  and  it 
was  urged  in  his  defense  that  polygamy  was,  with  him,  a 
matter  of  religious  duty,  the  court,  by  Chief  Justice  Waite, 
said : 

**So  here>  as  a  law  of  the  organization  of  society  under 
the  exclusive  dominion  of  the  United  States,  it  is  provided 
that  plural  marriages  shall  not  be  allowed.  Can  a  man 
excuse  his  practices  to  the  contrary  because  of  his  religious 
beliefs?  To  permit  this  would  be  to  make  the  professed 
doctrines  of  religious  belief  superior  to  the  law  of  the  land, 
and  in  effect,  to  permit  every  citizen  to  become  a  law  unto 
himself.  Government  could  exist  only  in  name  under  such 
circumstances. ' ' 

§33.  Ignorance  of  the  Law.  The  requirement  of  a 
guilty  mind  does  not  mean  that  the  accused  must  have 
known  the  act  to  be  contrary  to  the  criminal  law.  If 
ignorance  of  the  law  were  an  excuse,  then  a  wrongdoer 
might  shield  himself  from  punishment  in  many  cases  by 
his  mere  failure  to  learn  it.  And  this  principle  has  been 
applied  even  where  it  may  seem  to  have  worked  a  hardship. 
Thus,  where  a  man  who,  at  the  time  of  the  commission  of 
the  alleged  crime,  was  on  a  ship  upon  the  coast  of  Africa, 
and  was  convicted  under  a  statute  passed  a  month  and  a 
half  before,  news  of  which  could  not  have  reached  him,  the 
judges  were  of  the  opinion  that  he  was  guilty,  but  recom- 
mended that  he  be  pardoned.^  And  in  another  case,^  where 
a  native  of  Bagdad  was  accused  of  committing  a  crime  on 
board  an  East  India  ship  lying  in  the  docks  at  London, 
and  it  was  urged  that  the  alleged  act  was  not  a  crime  in 
his  own  country,  and  that  he  was  ignorant  that  it  was  con- 
trary to  the  law  of  England,  the  court  held  that  this  was  no 
defense. 

But  a  bona  fide  mistake  as  to  some  other  branch  of  law 
than  the  criminal  may  have  the  effect  of  eliminating  some 

1  98  U.  S.  145.  8  B.  V.  Esop,  7  C.  &  P.  456. 

2E.  V.  Bailey,  Eussell  &  Eyan  1. 


CEIMINAL  LAW  B8 

necessary  element  of  a  specific  crime,  and  thus  prevent  the 
act  from  being  criminal.  Thus,  if  a  man  takes  personal 
property  under  a  bona  fide  claim  of  right,  he  is  not  guilty 
of  larceny,  because,  to  be  guilty  of  larceny,  he  must  take 
it  with  the  intention  of  depriving  the  owner  of  it.  Here 
he  takes  it  with  no  such  intention.  He  has  made  a  mistake 
with  regard  to  the  law  of  property,  and  thinks  that  what 
is  another's  is  his  own,  but  he  is  not  pleading  ignorance  of 
the  law  of  larceny;  he  is  merely  pleading  that  his  mistake 
as  to  the  law  of  property  prevented  his  having  that  special 
kind  of  intent  that  the  criminal  law  requires  to  be  proved 
as  a  matter  of  fact  in  order  that  the  act  shall  be  considered 
a  theft.  If  A  recovered  judgment  against  B  for  conversion 
of  a  horse,  and  went  to  B's  stable  and  took  the  horse,  there 
would  be  no  criminal  intent. 

§34.  Mistake  of  Fact.  We  have  seen  that  knowingly 
doing  an  act  contrary  to  the  law  is  criminal,  even  though 
the  doer  was  ignorant  of  the  law  and  acting  from  what 
seemed  to  him  the  best  of  motives.  But  if  the  act,  which  ho, 
as  a  reasonable  man,  honestly  believes  he  is  doing,  is  not 
criminal,  and  does  not  involve  moral  turpitude,  he  will  not 
be  held  to  have  had  the  guilty  mind  if  it  turns  out  that  he 
was  mistaken  as  to  the  fact,  and  that  the  act  was  one,  in 
fact,  that  if  done  knowingly,  would  have  been  criminal. 
Thus  in  Levett's  Case,^  the  master  and  mistress  of  the 
house  had  gone  to  sleep,  and  about  twelve  o'clock  at  night 
their  servant,  having  procured  one  Frances  Freeman  to 
help  her  with  the  housework,  went  to  the  door  to  let  her 
out,  when  she  thought  she  heard  thieves  trying  to  break 
in,  and  ran  and  called  her  master  and  mistress  and  told 
them  so,  meanwhile  hiding  Frances  Freeman  in  the  buttery 
so  that  they  would  not  know  of  her  presence.  Levett  and 
his  wife  came  down,  he  with  his  sword  drawn,  and  searched 
for  the  thieves.  Discovering  somebody  in  the  buttery  the 
wife  cried  out  with  great  fear,  ''Here  they  be  that  would 
undo  us,"  whereupon  the  husband  rushed  in  and  thrusting 
with  his  rapier  in  the  dark,  mortally  wounded  the  said 

*  Croke  Car.  538. 


m  CRIMINAL  LAW 

Frances.  It  was  resolved  by  the  court  that  he  was  not 
guilty  of  manslaughter. 

This  rule,  that  an  honest  mistake  of  fact  excuses,  is 
fundamental  at  the  common  law,  and  where  a  statutory 
crime  must  be  done  knowingly,  intentionally,  maliciously, 
etc.,  it  is  included  in  the  statutory  definition;  but  some- 
times the  statute  does  not  expressly  indicate  that  anything 
more  than  the  doing  of  the  forbidden  act  is  necessary  to 
constitute  the  crime;  and  in  such  cases  it  is  a  difficult 
question  of  statutory  construction  as  to  whether  this  prin- 
ciple of  the  guilty  mind  or  mistake  of  fact  is  to  be  read 
into  it.  As  we  have  seen,^  the  English  and  Massachusetts 
courts  came  to  opposite  conclusions  on  this  point  in  con- 
struing similar  statutes  as  to  bigamy. 

This  question  of  statutory  construction  does  not  often 
arise  in  connection  with  the  more  important  crimes,  as  it  is 
ordinarily  not  left  open  by  the  language  of  the  statute; 
but  in  the  case  of  Regina  v.  Prince,^  where  the  defendant 
was  charged  with  having  unlawfully  taken  an  unmarried 
girl,  being  under  the  age  of  sixteen  years,  out  of  the  pos- 
session of  her  father,  the  jury  found  that  the  girl  had  told 
the  defendant  she  was  eighteen,  and  that  the  defendant 
believed  that  statement  and  that  such  belief  was  reasonable, 
and  so  the  court  was  compelled  to  decide  whether  this  was 
any  excuse  under  the  statute.  It  was  urged  that  the  com- 
mon-law doctrine  of  mistake  of  fact  was  implied  in  the 
word  ** unlawfully",  but  the  majority  of  the  court  held 
that  this  simply  meant  * 'without  legal  cause*',  and  that 
looking  at  the  whole  statute  they  thought  the  legislature 
meant  in  a  case  of  this  kind  that  the  man  would  have  to 
take  the  risk  of  the  girl  being  below  the  statutory  age. 

On  the  other  hand,  this  question  frequently  arises  in 
connection  with  police  legislation,  such  as  statutes  for- 
bidding the  sale  of  intoxicating  liquors,  where  it  is  claimed 
that  there  was  an  honest  belief  that  the  liquor  was  not 
intoxicating;  or  statutes  forbidding  the  sale  of  liquor  to 
police  officers  while  on  duty,  where  it  is  claimed  that  there 

5  See  8^pra,  |  11.  «  L.  B.  2  C.  C.  154. 


CRIMINAL  LAW  35 

was  an  honest  belief  that  the  officer  was  not  on  duty;  or 
statutes  forbidding  the  allowing  of  a  minor  to  remain  in 
a  billiard  parlor  where  it  is  claimed  that  there  was  an 
honest  belief  that  the  person  was  not  a  minor,  and  in  these 
cases  where  the  penalty  is  comparatively  small  and  the 
effective  enforcement  of  the  statute  would  be  so  hampered 
by  it,  many  of  the  courts  have  not  read  the  necessity  of 
the  guilty  mind  into  the  statutes,  and  have  held  that  an 
honest,  reasonable  mistake  of  fact  does  not  excuse,  but 
in  this  class  of  cases  the  authorities  are  pretty  well  divided. 
§  35.  Presumption  or  Inference  of  Intent.  Thus  far  we 
have  seen  that  if  a  man  does  an  act  knowingly  which  is  for- 
bidden by  the  criminal  law  he  does  it  with  a  guilty  mind. 
He  may  be  said  to  have  done  it  with  a  criminal  intent.  But 
often  the  result  may  differ  from  the  design.  The  result 
may  not  have  been  in  his  mind,  and  in  that  sense  unin- 
tended, but  that  will  not  necessarily  excuse  him.  Thus  in 
State  V.  Smith,"^  where  the  defendant  was  charged  with 
murder  and  it  was  urged  that  he  had  only  intended  some 
serious  injury,  the  court  said: 

"The  law  will  imply  that  the  prisoner  intended  the  nat- 
ural and  probable  consequences  of  his  own  act;  as  in  the 
case  of  shooting  a  gun  into  a  crowd,  the  law  will  imply, 
from  the  wantonness  of  the  act,  that  he  intended  to  kill 
someone,  although  it  might  have  been  done  in  sport.  If  the 
prisoner's  object  had  been  nothing  more  than  to  make  Car- 
ter's horse  throw  him,  and  he  had  used  such  means  only  as 
were  appropriate  to  that  end,  then  there  would  be  some 
J-eason  for  applying  to  his  case  the  distinction  that  where 
the  intent  was  to  commit  only  a  trespass,  or  a  misdemeanor, 
an  accidental  killing  would  be  only  manslaughter.  But  in 
this  case  the  act  done  indicated  an  intention  to  kill ;  it  was 
calculated  to  produce  that  effect,  and  no  other;  death  was 
the  probable  consequence  and  did  result  from  it ;  and  I  am 
of  opinion  there  was  no  error  in  the  charge  of  the  Circuit 
Judge,  that  if  the  prisoner  shot  at  Carter  the  crime  was 
murder,  although  the  prisoner  may  have  designed  only  to 
do  Carter  some  serious  injury,  as  the  falling  from  his 
horse." 

7  2  Strobhart  77. 


36  CRIMINAL  LAW 

Ordinarily,  the  question  whether  the  result  was  the 
natural  and  probable  consequence  of  the  act  is  one  of  fact 
for  the  jury,  although  in  homicide  cases  courts  are  apt  to 
decide  this  question  for  themselves  when  the  character  of 
the  weapon  leaves  little  chance  for  difference  of  opinion. 
When  it  has  been  determined  that  the  result  was  the  natural 
and  probable  consequence  of  the  act,  authorities  differ  as 
to  whether  the  mental  element  with  which  the  crime  charged 
must  be  done,  for  instance,  malice  in  murder,  malicious  in- 
tention in  malicious  mischief,  and  in  some  cases  reckless- 
ness in  manslaughter,  is  presumed  as  a  matter  of  law,  or 
is  merely  an  inference  which  may  be  drawn  by  the  jury. 

§  36.  Transferred  Intent.  Where  a  man  is  doing  some- 
thing that  is  perfectly  lawful,  and  exercising  due  care,  and 
yet  accidentally  inflicts  severe  injury  on  his  neighbor,  the 
principle  of  the  guilty  mind  forbids  that  he  should  be  held 
a  criminal  therefor.  But  suppose  that  he  intends  a 
malicious  assault  on  A  and  accidentally  wounds  B,  can  he  be 
held  for  the  malicious  wounding  oi  Bf  He  did  not  know- 
ingly wound  B  nor  was  it  the  natural  and  probable  conse- 
quence of  his  intended  assault  on  A,  but  the  law  transfers 
the  malicious  intention  toward  A  to  the  actual  though 
accidental  wound  given  to  B,  and  holds  him  guilty  of 
maliciously  wounding  B.  The  same  principle  applies  if  a 
man  intends  unlawfully  to  shoot  A  and  accidentally  kills  B. 
He  is  guilty  of  the  murder  of  B.  But  in  a  case^  where  the 
defendant  had  thrown  a  rock  at  some  persons  with  whom 
he  had  been  fighting  and  accidentally  broke  a  window,  the 
court  held  that  he  was  not  guilty  of  maliciously  breaking 
the  window.  The  malicious  intention  toward  the  persons 
was  a  different  kind  of  malicious  intention  from  that  meant 
in  the  statute  relative  to  malicious  injuries  to  property, 
under  which  the  defendant  was  prosecuted,  and  it  could 
not  be  transferred.  • 

Very  probably  if  he  had  maliciously  intended  to  destroy 
other  property  and  had  accidentally  broken  the  window, 
the  defendant  would  have  been  found  guilty.    It  must  be 

sBegina  v.  Pemtliton,  12  Cox  C,  C.  607. 


CRIMINAL  LAW  37 

kept  in  mind,  however,  that  this  decision  dealt  with  a 
statutory  offense.  The  term  ''malicious"  at  common  law 
was  very  broad,  rather  denoting  that  the  act  was  done 
without  lawful  excuse  than  any  specific  intent,  and  it  is 
doubtful  whether  many  statutes  will  be  interpreted  as  this 
one  was.  The  broader  the  interpretation  of  the  term 
''malicious"  the  greater  is  the  possibility  of  transferred 
intent.  In  murder  and  manslaughter,  where  the  guilty 
mind  is  of  the  most  general  character,  the  doctrine  of  trans- 
ferred intent  finds  frequent  application.^ 
§  37.    Specific  Intents.   As  Mr.  Justice  Stephen  has  said: 

*'The  mental  elements  of  different  crimes  differ  widely. 
Mens  rea  (guilty  mind)  means,  in  the  case  of  murder, 
malice  aforethought;  in  the  case  of  theft,  an  intention  to 
steal ;  in  the  case  of  rape,  an  intention  to  have  forcible  con- 
nection with  a  woman  without  her  consent ;  and  in  the  case 
of  receiving  stolen  goods,  knowledge  that  the  goods  were 
stolen.  In  some  cases  it  denotes  mere  inattention.  For 
instance,  in  the  case  of  manslaughter,  it  may  mean  forget- 
ting to  notice  a  signal."  ^^ 

These  different  kinds  of  intent  must  be  treated  more  at 
length  under  the  specific  crimes. 

A  large  class  of  cases  where  the  intent  is  especially 
specific  is  that  of  attempts,  and  their  close  neighbor,  feloni- 
ous assaults,  such  as  assaults  with  intent  to  commit  murder, 
to  commit  rape,  etc.  In  these  cases  the  intent  has  not  been 
accomplished,  as  the  intent  to  permanently  deprive  the 
owner  of  his  property  need  not  be  in  larceny,  nor  the 
intent  to  defraud  in  forgery,  nor  the  intent  to  commit  the 
felony  in  the  mind  of  the  burglar  at  the  time  he  breaks 
and  enters  in  burglary.  In  these  cases  the  accused  is  not 
charged  with  the  carrying  out  of  the  specific  intent,  but 
with  some  other  act  joined  to  this  intention.  It  is  clear 
that  here,  at  any  rate,  the  intent  cannot  be  presumed  from 
the  act  charged,  but  that  it  is  an  independent  element 
which  must  be  proved  like  any  other  fact. 

»See  infra,  §§96,  97,  103.      loEegina  v.  Tolson,  23  Q.  B.  Div.  168. 


CHAPTER  IV 
CRIMINAL  RESPONSIBILITY 

INSANITY 

§38.  Diseased  Mind.  Where  one  does  not  act  under 
tlie  duress  of  a  diseased  mind  or  insane  delusion,  but  from 
motives  of  anger,  revenge,  or  other  passion,  he  cannot  claim 
to  be  shielded  from  punishment  for  crime  on  the  ground 
of  insanity.  Insanity  proper  is  more  or  less  of  a  mental 
derangement,  coexisting,  often,  it  is  true,  with  a  disturb- 
ance of  the  emotions,  affections,  and  other  moral  powers. 
A  mere  moral,  or  emotional  insanity,  so-called,  unconnected 
with  disease  of  the  mind,  or  irresistible  impulse  resulting 
from  mere  moral  obliquity,  or  wicked  propensities  and 
habits,  is  not  recognized  as  a  defense  to  crime  in  our 
courts.^ 

§  39.  Right  and  Wrong  Test.  But  the  mere  fact  that  a 
man  is  suffering  from  a  diseased,  insane  mind  will  not 
shelter  him  from  criminal  responsibility.  His  insanity 
may  be  partial  and  have  had  nothing  to  do  with  the  crime. 
Or,  he  may  be  more  or  less  imbecile,  and  yet  not  sufficiently 
weakminded  to  allow  him  to  go  unpunished.  It  is  not 
sufficient  to  determine,  then,  that  the  accused  was  insane. 
The  real  question  to  determine  is,  whether  the  insanity  had 
taken  such  a  form,  or  reached  such  a  stage,  at  the  time  of 
the  act,  as  to  relieve  the  accused  from  legal  responsibility 
therefor.  It  is  not  sufficient  to  allow  medical  experts  to 
testify  merely  as  to  the  insanity,  for  insanity  alone  does 
not  excuse. 

There  must  be  some  further  test  of  criminal  responsi- 
bility, and  the  one  most  generally  followed  is  the  famous 
"right  and  wrong"  test  laid  down  by  the  English  judges  in 
their  reply  to  the  House  of  Lords  in  the  debate  growing 

1  Parsons  v.  State,  81  Ala.  577. 
38 


CRIMINAL  LAW  39 

out  of  M'Naghten's  Case.^  It  was  their  opinion  "that  to 
establish  a  defense  on  the  ground  of  insanity,  it  must  be 
clearly  proved  that,  at  the  time  of  the  committing  of  the 
act,  the  party  .accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature 
and  quality  of  the  act  he  was  doing;  or,  if  he  did  know  it, 
that  he  did  not  know  he  was  doing  what  was  wrong, ' '  Thus, 
if  it  were  proved  that  the  accused  knew  the  act  he  was 
doing  was  contrary  to  the  law  of  the  land,  or  even  if  he 
did  not  know  it  was  contrary  to  the  law  of  the  land,  if  it 
were  so  in  fact,  and  he  knew  it  was  wrong,  he  would  be 
punishable.  This  is  the  test  applied  in  probably  the 
greater  number  of  the  states. 

§40.  "Irresistible  Impulse"  Test.  The  "right  and 
wrong"  test  proceeds  on  the  theory  that  there  can  be  no 
guilty  mind  where  mental  disease  causes  an  inability  to 
distinguish  between  right  and  wrong,  but  some  states  have 
gone  further  and  said  that  there  can  be  no  guilty  mind 
where  such  mental  disease  deprives  one  of  his  power  to 
choose  between  right  and  wrong.  And  it  is  significant 
that  we  first  find  the  doctrine  that  there  must  be  a  guilty 
mind  stated  in  connection  with  cases  of  coercion.  If  the 
act  was  involuntary  there  could  be  no  guilty  mind.  Chief 
Justice  Shaw  lays  down  this  test  in  the  case  of  Common- 
wealth v.  Rogers,^  where  he  says : 

"If,  then,  it  is  proved,  to  the  satisfaction  of  the  jury, 
that  the  mind  of  the  accused  was  in  a  diseased  and  unsound 
state,  the  question  will  be  whether  the  disease  existed  to  so 
high  a  degree  that  for  the  time  being  it  overwhelmed  the 
reason,  conscience,  and  judgment,  and  whether  the  pris- 
oner, in  committing  the  homicide,  acted  from  an  irresistible 
and  uncontrollable  impulse.  If  so,  then  the  act  was  not  the 
act  of  a  voluntary  agent,  but  the  involuntary  act  of  the 
body  without  the  concurrence  of  a  mind  directing  it. ' ' 

But  although  the  "irresistible  impulse"  test  is  followed 
in  a  number  of  jurisdictions,  it  is  the  minority  rule.  Where 
it  prevails,  the  "right  and  wrong"  test  is  also  used  to  the 

2  10  Cl.  &  F.  200.  s  7  Mete.  500. 


40  CRIMINAL  LAW 

extent  that  inability  to  distinguish  between  right  and  wrong 
will  also  excuse.  A  familiar  instance  of  irresistible  im- 
pulse is  that  in  kleptomania,  where  the  act  is  usually  done 
with  the  knowledge  that  it  is  contrary  to  the  law,  but,  it 
is  claimed,  under  irresistible  impulse.  But  most  states  have 
taken  the  view  of  Baron  Bramwell  in  Eegina  v.  Haynes,* 
that  *'if  an  influence  be  so  powerful  as  to  be  termed  irre- 
sistible, so  much  the  more  reason  is  there  why  we  should 
not  withdraw  any  of  the  safeguards  tending  to  counter- 
act it." 

§41.  Delusions.  Often  insanity  takes  the  form  of  a 
delusion  as  to  existing  facts,  and  in  this  case  it  is  every- 
where the  rule  that  the  delusion  will  excuse  to  the  same 
extent  that  the  facts,  with  respect  to  which  the  delusion 
exists,  would  have  excused,  if  real.  Thus,  if  one  commits 
homicide  under  the  delusion  that  his  life  is  about  to  be 
taken,  he  will  be  excused  if  the  facts  believed  to  have  been 
true  would  have  justified  his  killing  in  self-defense  if  they 
had  been  real.  This  is  merely  applying  the  rule  that  a 
mistake  of  fact  excuses,  to  mistakes  of  fact  resulting  from 
insane  delusions. 

Where  the  insanity  takes  the  form  of  an  insane  delusion 
as  to  fact,  and  an  inability  to  distinguish  between  the  right 
and  wrong  of  action  based  on  the  supposed  fact,  this  will 
excuse.  Thus,  a  charge  to  the  jury,  that  if  the  defendant 
believed  there  were  witches,  and  that  he  had  a  right  to  kill 
them,  and  such  belief  was  the  product  of  a  diseased  brain, 
they  should  acquit  him,  was  upheld  by  the  United  States 
Supreme  Court.^ 

When  the  insanity  takes  the  form  of  a  delusion  and  an 
irresistible  impulse  based  on  that  delusion,  this  will  be  a 
good  defense  in  those  states  where  the  doctrine  of  **  irre- 
sistible impulse"  prevails  generally. 

INTOXICATION 

§  42.  No  Excuse  for  Crime.  Voluntary  intoxication  is 
no  excuse  for  crime.    Thus,  if  a  man  while  drunk,  shoots 

4 1  F.  &  F.  666.  e  Hotema  v.  United  States,  186  U.  S.  413. 


CRIMINAL  LAW  41 

at  another  to  scare  him,  but  without  an  actual  intention  to 
take  his  life,  and  kills  the  other,  he  will  be  held  for  murder, 
notwithstanding  the  fact  that  he  would  never  have  done  it 
if  he  had  not  been  drunk.  He  is  taken  to  intend  the  natural 
and  probable  consequences  of  his  act  just  as  if  he  had  been 
fully  sober.  So,  if  a  locomotive  engineer,  under  the  in- 
fluence of  drink,  is  so  negligent  that  the  natural  and 
probable  consequence  of  his  act  is  someone's  death,  and 
death  results,  he  will  be  held  for  manslaughter,  although, 
when  sober,  none  were  more  careful  of  human  life  than  he. 
Likewise,  where  a  man  nerves  himself  to  crime  through 
drink,  it  is  clear  the  drunkenness  will  not  excuse  his  crime. 
In  this  case  the  drunkenness  is  even  the  instrument  of 
crime. 

But  where  a  homicide  is  committed  by  accident  or  mis- 
chance, the  one  causing  the  homicide  will  not  be  held  for 
manslaughter,  even  though  the  accident  or  mischance  might 
never  have  occurred  but  for  the  drink.  The  mere  fact  of 
voluntary  drunkenness  will  not  supply  the  element  of  the 
guilty  miud  necessary  to  make  the  homicide  criminal. 
Thus,  in  Regina  v.  Egan,^  a  mother,  while  in  a  more  or  less 
intoxicated  condition,  had  overlain  and  suffocated  her 
child,  but  the  court  held  it  to  have  been  an  unhappy  mis- 
chance and  insufificient  to  sustain  a  charge  of  manslaughter. 
And  in  the  case  of  Regina  v.  Bruce,'^  where  the  prisoner, 
while  very  drunk,  had  been  playing  with  a  boy,  and  in 
consequence  of  the  boy  breaking  away  from  him,  had  stag- 
gered  into  the  street  and  knocked  down  a  woman  who  hap- 
pened to  be  passing,  from  the  effect  of  which  the  woman 
died,  the  court  held  that  the  death  of  the  woman  was  an 
accident,  and  that  the  defendant  was  not  guilty  of  man- 
slaughter. 

§  43.  May  Affect  Specific  Intent.  In  the  cases  just  given 
of  the  drunken  shooter  and  the  drunken  engineer,  the  law 
presumes  that  they  intend  the  natural  and  probable  conse- 
quences of  their  acts,  and  even  though  they  may  have  been 
too  drunk  to  foresee  the  consequences,  their  drunkenness 

0  23  Vic.  L.  R.  159.  t  2  Cox  C.  C.  262. 


42  CRIMINAL  LAW 

will  be  no  excuse.  But,  as  we  have  already  seen,^  there 
are  certain  crimes,  such  as  felonious  assaults,  larceny, 
forgery,  etc.,  where  the  specific  intent  charged,  such  as  the 
intent  to  kill,  or  the  intent  to  steal,  or  the  intent  to  defraud, 
is  not  presumed,  but  must  be  proved  as  a  matter  of  fact. 
In  these  cases,  if  the  drunkenness  is  so  extreme  as  to  have 
rendered  the  accused  incapable  of  the  specific  intent,  the 
proof  of  the  commission  of  the  crime  must  fail. 

Thus,  in  the  case  of  State  v.  Johnson,^  the  prisoner  was 
indicted  for  murder  in  the  first  degree.    The  court  said: 

"As  the  homicide  was  not  perpetrated  by  means  of 
poison,  or  lying  in  wait,  or  in  committing  or  attempting  to 
commit  any  of  the  crimes  enumerated  in  the  statute,  he 
could  only  be  convicted  of  the  higher  offense  by  showing 
that  it  was  a  willful,  deliberate,  and  premeditated  killing. 
A  deliberate  intent  to  take  life  is  an  essential  element  of 
that  offense.  The  existence  of  such  an  intent  must  be 
shown  as  a  fact. 

"Implied  malice  is  sufficient  at  common  law  to  make  the 
offense  murder,  and  under  our  statute  to  make  it  murder 
in  the  second  degree;  but  to  constitute  murder  in  the  first 
degree,  actual  malice  must  be  proved.  Upon  this  question 
the  state  of  the  prisoner's  mind  is  material.  In  behalf  of 
the  defense,  insanity,  intoxication,  or  any  other  fact  which 
tends  to  prove  that  the  prisoner  was  incapable  of  delibera- 
tion, was  competent  evidence  for  the  jury  to  weigh.  Intoxi- 
cation is  admissible  in  such  cases,  not  as  an  excuse  for 
crime,  not  in  mitigation  of  punishment,  but  as  tending  to 
show  that  the  less,  and  not  the  greater,  offense  was  in  fact 
committed." 

§44.  Provocation.  In  England  drunkenness  may  be 
taken  into  consideration  in  cases  where  what  the  law  deems 
sufficient  provocation  has  been  given,  because  the  question 
is,  in  such  cases,  whether  the  final  act  is  to  be  attributed  to 
the  passion  or  anger  excited  by  the  previous  provocation, 
and  that  passion  is  more  easily  excitable  in  a  person  when 
in  a  state  of  intoxication  than  when  he  is  sober.^^    And 

«  See  supra,  §  38.         lo  Baron  Parke  in  Eex  v.  Thomas,  7  C.  &  P.  817. 
»  40  Conn.  136. 


CRIMINAL  LAW  43 

this  ruling  has  had  some  following  in  this  country.  Its 
effect,  however,  in  reducing  what  would  otherwise  be 
murder  to  manslaughter,  has  been  the  subject  of  severe 
criticism.  In  the  case  of  Keenan  v.  Commonweal th,^^  the 
court  said: 

"Measured  by  this  rule,  the  crimes  of  a  proud,  or  cap- 
tious, or  habitually  ill-natured  man,  or  one  who  eats  or 
fasts  too  much,  or  of  one  who  is  habitually  quarrelsome, 
covetous,  dishonest,  or  thievish,  or  who,  by  any  sort  of 
indulgence,  fault,  or  vice,  renders  himself  very  easily 
excitable,  or  very  subject  to  temptation,  are  much  less 
criminal  than  those  of  a  moderate,  well-tempered  and 
orderly  citizen,  because  to  the  former  a  very  small  provoca- 
tion or  temptation  becomes  adequate  to  excuse  or  palliate 
any  crime.  If  such  were  the  rule,  a  defendant  would  be 
much  more  likely  to  injure  than  to  benefit  his  case  by  show- 
ing a  good  character,  and  the  law  would  present  no  induce- 
ment to  men  to  try  to  rise  to  the  standard  of  even  ordinary 
social  morality.'* 

§45.  iDelirium  Tremens.  It  was  early  laid  down  by 
Lord  Hale  that  where  continued  indulgence  in  intoxicating 
drink  had  produced  permanent  mental  disease  or  "fixed 
frenzy",  the  rules  with  regard  to  insanity  would  apply  and 
not  those  with  regard  to  drunkenness.  Insanity  brought 
on  by  long  intemperance  is  not  distinguished  from  other 
forms  of  insanity  merely  because  it  has  its  remote  origin 
in  the  voluntary  act  of  the  victim.  Thus,  in  United  States 
V.  Drew,^2  the  accused  was  suffering  from  delirium  tremens 
when  he  committed  the  homicide,  and  Justice  Story  said: 

"Had  the  crime  been  committed  while  the  defendant  was 
in  a  fit  of  intoxication,  he  would  have  been  liable  to  be  con- 
victed for  murder.  As  he  was  not  then  intoxicated,  but 
merely  insane  from  an  abstinence  from  liquor,  he  cannot 
be  pronounced  guilty.  The  law  looks  to  the  immediate  and 
not  to  the  remote  cause — to  the  actual  state  of  the  party, 
and  not  to  the  causes  which  remotely  caused  it." 

But  in  a  recent  case,^^  the  court  said : 

11  44  Pa.  Stat.  55.  "  State  v.  Haab,  105  La.  230. 

12  5  Mason  (U.  S.)  29. 


U  CEIMINAL  LAW 

"We  think  it  fairly  appears  from  the  recitals  of  the 
accused  and  those  of  the  judge  that  the  accused  was  in  a 
state  of  intoxication  at  the  time  of  the  homicide,  and  that 
his  mental  condition  at  that  time,  whatever  it  might  be,  was 
the  immediate  and  direct  result,  and  not  the  remote  result, 
of  voluntary  drunkenness.  When  we  say  immediate  and 
direct  result,  we  mean  to  say  that  it  arose  during  a  condi- 
tion of  drunkenness,  and  pending  a  single,  continuing,  vol- 
untary, drunken  debauch,  which  at  its  origin  started  with  the 
accused  in  a  condition  of  sanity.  The  results  were,  in  a 
legal  sense,  immediate  and  direct  results,  though  the  begin- 
ning of  the  drunken  debauch  may  have  dated  some  days 
back,  or  even  some  weeks  before  the  homicide." 

§  46.  Involuntary  Intoxication.  The  rule  that  drunken- 
ness is  no  excuse  for  crime  has  always  been  confined  to 
voluntary  drunkenness.  Thus  Lord  Hale  did  not  apply  it 
where  the  intoxication  was  without  the  fault  of  the  victim, 
as  where  it  was  caused  by  drugs  administered  by  an  un- 
skillful physician.  But  an  irresistible  impulse  to  drink 
does  not  make  the  drunkenness  involuntary  within  the 
meaning  of  the  rule. 

COVERTURE 

§47.  Coverture.  The  limited  responsibility  of  a  mar- 
ried woman  for  crime  is  based,  not  on  the  lack  of  mental 
capacity,  but  on  the  quite  general  presumption  that  she 
is  acting  under  the  coercion  of  her  husband,  and  that, 
therefore,  the  crime  is  not  her  voluntary  act.  The  general 
rule  is  stated  in  Commonwealth  v.  Daley,^*  as  follows : 

**When  a  married  woman  is  indicted  for  a  crime,  and  it 
is  contended  in  defense  that  she  ought  to  be  acquitted 
because  she  acted  under  the  coercion  of  her  husband,  the 
question  of  fact  to  be  determined  is  whether  she  really  and 
in  truth  acted  under  such  coercion,  or  whether  she  acted  of 
her  own  free  will  and  independently  of  any  coercion  or  con- 
trol by  him.  To  aid  in  determining  this  question  of  fact, 
the  law  holds  that  there  is  a  presumption  of  such  coercion 
from  his  presence  at  the  time  of  the  commission  of  the 
crime;  this  presumption,  however,  is  not  conclusive  and  it 

14  148  Mass.  11. 


CRIMINAL  LAW  45 

may  be  rebutted.  And  in  order  to  raise  this  presumption 
it  is  also  established  that  the  husband's  presence  need  not 
be  at  the  very  spot,  or  in  the  same  room,  but  it  is  sufficient 
if  he  was  near  enough  for  her  to  be  under  his  immediate 
influence  or  control." 

But  this  presumption  does  not  prevail  in  cases  of  treason 
and  murder,  and  it  is  said  in  Hawkins  Pleas  of  the  Crown,^** 
that 

"A  wife  may  be  indicted  together  with  her  husband,  and 
condemned  to  the  pillory  with  him  for  keeping  a  bawdy- 
house;  for  this  is  an  offense  as  to  the  government  of  the 
house,  in  which  the  wife  has  a  principal  share;  and  also 
such  an  offense  as  may  generally  be  presumed  to  be 
managed  by  the  intrigues  of  her  sex. ' ' 

INFANCY  AND  INCORPORATION 

§  48.  Infancy.  According  to  the  common  law, '  *  where  a 
child  is  under  the  age  of  seven  years,  the  law  presumes  him 
to  be  incapable  of  committing  a  crime;  after  the  age  of 
fourteen  he  is  presumed  to  be  responsible  for  his  actions 
as  entirely  as  if  he  were  forty;  but  between  the  ages  of 
seven  and  fourteen,  no  presumption  of  law  arises  at  all, 
and  that  which  is  termed  a  malicious  intent — a  guilty 
knowledge  that  he  was  doing  wrong — must  be  proved  by 
the  evidence,  and  cannot  be  presumed  from  the  mere  com- 
mission of  the  act."^^  But  there  was  a  conclusive  presump- 
tion that  a  boy  under  fourteen  years  was  incapable  of  com- 
mitting rape  as  a  principal  in  the  first  degree.  Statutory 
provisions  in  some  states  have  raised  the  age  for  possible 
criminal  responsibility  to  nine  and  ten  years. 

§  49.  Incorporation.  It  was  once  thought  that  a  corpo- 
ration, although  it  could  be  held  criminally  for  an  omission 
of  duty,  could  not  be  criminally  responsible  for  the  positive 
wrongdoing  of  its  agents,  on  the  ground  that  it  had  no 
authority  to  do  wrong,  and  that,  therefore,  the  wrongful 
acts  must  be  ultra  vires  (beyond  its  powers)  and  treated 
as  the  personal  acts  of  the  agents.    This  was  an  attitude 

"  Ch.  1,  §  12.  18  Erie,  Justice,  in  Begina  v.  Smith,  1  Cox  C.  C.  260. 


46  CEIMINAL  LAW 

similar  to  that  taken  by  President  Lincoln  towards  the 
states  which  attempted  to  secede.  The  acts  directed  against 
the  United  States  were  treated  as  the  acts  of  the  individuals 
holding  the  state  offices,  but  not  as  the  acts  of  the  states 
themselves. 

But  as  corporations  became  more  numerous  and  impor- 
tant, it  was  seen  that  this  attitude  must  be  modified,  and 
the  tendency  of  the  more  recent  cases  in  courts  of  the  high- 
est authority  has  been  to  extend  the  application  of  all  legal 
remedies  to  corporations,  and  assimilate  them,  as  far  as 
possible,  in  their  legal  duties  and  responsibilities  to  indi- 
viduals.^^ There  are  certain  crimes,  such  as  perjury,  rape, 
murder,  and  similar  offenses,  which  are  so  entirely  without 
the  scope  of  corporate  purposes  and  powers,  that  even  if 
ordered  by  the  directors  in  order  to  accomplish  some  pur- 
pose deemed  by  them  to  be  corporate,  it  is  likely  they  would 
be  deemed  the  individual  acts  of  the  directors,  and  not  the 
acts  of  the  corporation. 

But  what  the  directors  do,  "within  the  scope  and  pur- 
poses of  the  corporation,  the  corporation  does.  If  they  do 
any  injury  to  another,  even  though  it  necessarily  involves 
in  its  commission  a  malicious  intent,  the  corporation  must 
be  deemed  by  imputation  to  be  guilty  of  the  wrong,  and 
answerable  for  it,  as  an  individual  would  be  in  such  case."^® 
Thus,  corporations  have  been  held  for  intentionally  requir- 
ing laborers  to  work  more  than  eight  hours  a  day  on  public 
works  of  the  United  States,  for  committing  nuisances  and 
being  in  contempt  of  court,  and  their  prosecution  for 
rebating  is  familiar  history.  Of  course  corporations  cannot 
be  imprisoned,  but  they  may  be  fined  and  their  corporate 
life  taken  away. 

17  Com.  V.  Proprietors  of  New  Bedford  Bridge,  2  Gray  339. 

18  Quoted  in  U.  S.  v.  John  Kelso  Co.,  86  Fed.  340. 


CHAPTER  V 
JUSTIFICATION  AND  EXCUSE 

PUBUC  AUTHORITY 

§  50.  Execution  of  Process.  ' '  The  taking  away  of  the 
life,  therefore,  of  the  malefactor  according  to  law  by  sen- 
tence of  the  judge,  and  by  the  sheriff  or  other  minister  of 
justice,  pursuant  to  such  sentence,  is  not  only  an  act  of 
necessity,  but  of  duty,  not  only  excusable,  but  commendable, 
when  the  law  requires  it."  ^  And  the  taking  of  life  in  the 
execution  of  lawful  process  may  be  justified  because  of  the 
resistance  offered  by  the  one  subjected  to  the  process.  In 
the  case  of  the  United  States  v.  Eice,^  the  court  said : 

''An  officer  of  the  law  who  has  legal  process  in  his  hands 
is  bound  to  execute  it  according  to  the  mandate  of  the  writ. 
If  he  is  resisted  in  the  performance  of  this  duty,  he  must 
overcome  such  resistance  by  the  use  of  such  force  as  may 
be  necessary  for  him  to  execute  his  duty.  If  necessary,  the 
law  authorizes  him  to  resort  to  extreme  measures,  and  if 
the  resisting  party  is  killed  in  the  struggle,  the  homicide  is 
justifiable." 

But  if  the  one  subjected  to  process  attempts  flight,  even 
after  arrest,  instead  of  making  resistance,  the  officer  is 
not  justified  in  shooting  to  kill  unless  the  act  charged  is 
a  felony.  And  even  in  the  case  of  resistance  to  arrest, 
one  court  at  least  has  held  that  the  killing  is  not  justi- 
fied in  the  case  of  a  misdemeanor,  although  the  warrant 
may  not  otherwise  be  executed.^  In  any  case,  the  officer 
does  not  have  to  abstain  from  performing  his  duty  because 
his  life  will  be  endangered,  and,  in  necessary  self-defense, 
may  kill. 

*'An  officer  is  authorized  to  summon  as  many. persons  as 
may  be  necessary  to  assist  him  in  the  performance  of  his 


1 1  Hale  p.  C.  496.       s  Stephens  v.  Commonwealth,  20  K7.  Law  Rep.  544. 
2  Fed.   Cas.  No.   16,153. 


47 


48  CEIMINAL  LAW 

legal  duties,  and  such  persons  are  bound  to  obey  such  sum- 
mons, and  they  are  under  the  same  protection  afforded  to 
officers,  as  they  are  for  the  time  officers  of  the  law."* 

Even  without  a  warrant  officers  and  private  persons  are 
under  a  duty  to  arrest  offenders  for  crimes  committed  in 
their  presence,  and  in  the  case  of  felonies  officers  have  large 
powers  of  arrest,  although  the  offense  is  not  committed  in 
their  presence.  In  any  of  these  cases  where  the  arrest  is 
authorized,  the  above  principles  as  to  the  execution  of  legal 
process  apply. 

§51.  Prevention  of  Crime.  It  was  formerly  the  rule 
that  one  might  shoot  to  kill  where  that  was  necessary  to 
prevent  the  perpetration  of  a  felony,  and  the  rule  was  not 
unreasonable,  when  the  penalty  for  practically  all  felonies 
was  death.  But  although  this  statement  is  sometimes 
repeated  today,  the  tendency  of  modern  decisions  is  to  limit 
the  application  of  the  rule  to  the  more  atrocious  felonies, 
such  as  murder,  robbery,  housebreaking  in  the  night  time, 
rape,  mayhem,  or  other  felonies  against  the  person,  and  not 
to  extend  it  to  felonies  unaccompanied  by  force.  Thus  in 
Storey  v.  State,^  the  defendant  was  charged  with  murder 
for  killing  a  man  attempting  to  make  way  with  the  defend- 
ant's horse,  and  the  court  was  requested  to  charge  the  jury, 
"that  if  the  horse  was  feloniously  taken  and  carried  away 
by  the  deceased,  and  there  was  an  apparent  necessity  for 
killing  deceased  in  order  to  recover  the  property  and  pre- 
vent the  consummation  of  the  felony,  the  homicide  would 
be  justifiable;"  but  this  the  court  refused  to  do,  and  the 
Supreme  Court  upheld  this  refusal  on  the  ground  that  lar- 
ceny, at  least  committed  as  this  had  been  in  the  daytime, 
was  not  so  serious  a  felony  as  to  justify  killing. 

DOMESTIC  AUTHORITY 

§52.  Husband  and  Wife.  Under  the  old  ideas  of  the 
relation  of  husband  and  wife,  the  husband  had,  apparently, 
some  right  of  corporal  chastisement  over  the  wife,  but  the 
following  is  now  good  general  law : 

4  U.  S.  V.  Bice,  supra.  e  71  Ala.  329. 


CRIMINAL  LAW  49 

*'We  may  assume  that  the  old  doctrine  that  a  husband 
had  a  right  to  whip  his  wife,  provided  he  used  a  switch  no 
larger  than  his  thumb,  is  not  law  in  North  Carolina.  Indeed, 
the  courts  have  advanced  from  that  barbarism  until  they 
have  reached  the  position  that  the  husband  has  no  right  to 
chastise  his  wife,  under  any  circumstances.  But  from 
motives  of  public  policy,  in  order  to  preserve  the  sanctity 
of  the  domestic  circle,  the  courts  will  not  listen  to  trivial 
complaints.  If  no  permanent  injury  has  been  inflicted,  nor 
malice,  cruelty,  nor  dangerous  violence  shown  by  the  hus- 
band, it  is  better  to  draw  the  curtain,  shut  out  the  public 
gaze,  and  leave  the  parties  to  forget  and  forgive. ' '  ^ 

§  53.  Parent  and  Child.  A  parent  may  administer 
reasonable  chastisement  to  a  child,  but  the  correction  must 
not  exceed  the  bounds  of  moderation  either  *4n  the  meas- 
ure of  it  or  in  the  instrument  made  use  of  for  that  pur- 
pose." Thus,  where  a  father,  for  some  childish  fault,  took 
his  little  daughter,  aged  two  years  and  six  months,  and  gave 
her  a  number  of  strokes  with  a  strap  one  inch  wide  and 
eighteen  inches  long,  from  which  strokes  she  died,  the  jury 
found  him  guilty  of  manslaughter.'^ 

§  54.  Schoolmaster  and  Pupil.  Where  this  has  not  been 
changed  by  statute  or  school  regulations,  the  schoolmaster 
has,  within  his  own  sphere,  much  the  same  powers  of  dis- 
cipline as  the  parent.  Courts  are  likely  to  be  lenient  with 
both  the  parent  and  the  schoolmaster  when  no  improper 
instrument  has  been  used,  although  a  reasonable  man  might 
have  considered  the  punishment  excessive,  if  the  excess  has 
been  due  to  an  honest  mistake  of  judgment;  but  if  the 
excess  has  been  due  to  anger,  or  brutality,  or  vindictiveness, 
all  the  courts  are  agreed  in  holding  them  strictly  to  account. 

SELF-DEFENSE 

§55.  Reasonable  Force.  The  general  rule  is  that  a 
person  who  is  assaulted  may  defend  himself,  opposing  force 
to  force,  using  as  much  force  as  is  necessary  for  his  own 
protection,  and  can  be  held  only  for  exceeding  such  degree. 
But,  at  times,  the  apparent  danger,  and  the  apparent  degree 

«  State  V.  Oliver,  70  N.  C.  60.  7  Eegina  v.  Griffin,  11  Cox  C.  C.  402. 


50  CEIMINAL  LAW 

of  force  necessary  for  self -protection  is  greater  than  actu- 
ally exists.  Here  the  doctrine,  that  a  reasonable  hona  fide 
mistake  of  fact  excuses,  comes  into  play.  Thus  in  Shorter  v. 
People,^  the  court  said : 

**When  one  who  is  without  fault  himself  is  attacked  by 
another  in  such  a  manner  or  under  such  circumstances  as 
to  furnish  reasonable  grounds  for  apprehending  a  design 
to  take  away  his  life,  or  do  him  some  great  bodily  harm, 
and  there  is  reasonable  ground  for  believing  the  danger 
imminent  that  such  design  will  be  accomplished,  I  think  he 
may  safely  act  upon  appearances,  and  kill  the  assailant,  if 
that  be  necessary  to  avoid  the  danger;  and  the  killing  will 
be  justifiable,  although  it  may  afterwards  turn  out  that  the 
appearances  were  false,  and  there  was  in  fact  neither  design 
to  do  him  serious  injury,  nor  danger  that  it  would  be  done. 
He  must  decide  at  his  peril  upon  the  force  of  the  circum- 
stances in  which  he  is  placed,  for  that  is  a  matter  which 
will  be  subject  to  judicial  review.  But  he  will  not  act  at 
the  peril  of  making  that  guilt,  if  appearances  prove  false, 
which  would  be  innocence  had  they  proved  true. ' ' 

§  56.  Retreat  to  the  Wall.  But  the  law  is  very  jealous 
of  the  taking  of  human  life,  even  in  self-defense,  and  some 
of  the  courts  have  denied  the  right  of  the  assailed  to  stand 
his  ground  and  use  such  force  as  is  necessary  to  repel  the 
attack,  where  the  latter  would  necessitate  the  killing  of  the 
assailant,  and  the  assailed  could  with  reasonable  safety 
retreat.    Thus  in  Commonwealth  v.  Drum,^  the  court  said : 

**The  right  to  stand  in  self-defense  without  fleeing  has 
been  strongly  asserted  by  the  defense.  It  is  certainly  true 
that  every  citizen  may  rightfully  traverse  the  street,  or  may 
stand  in  all  proper  places,  and  need  not  flee  from  every 
one  who  chooses  to  assail  him.  "Without  this  freedom  our 
liberties  would  be  worthless. 

''But  the  law  does  not  apply  this  right  to  homicide.  The 
question  here  does  not  involve  the  right  of  mere  ordinary 
defense,  or  the  right  to  stand  wherever  he  may  rightfully 
be,  but  it  concerns  the  right  of  one  man  to  take  the  life  of 
another.  Ordinary  defense  and  the  killing  of  another  evi- 
dently stand  upon  different  footings.    When  it  comes  to  a 

8  2  Comstock  193.  »  58  Pa.  9. 


CRIMINAL  LAW  61 

question  whether  one  man  shall  flee  or  another  shall  live, 
the  law  decides  that  the  former  shall  rather  flee  than  that 
the  latter  shall  die. ' ' 

But  in  a  late  Minnesota  case/"  the  court  said : 

"The  doctrine  of  'retreat  to  the  wall'  had  its  origin 
before  the  general  introduction  of  guns.  Justice  demands 
that  its  application  have  due  regard  to  the  present  general 
use,  and  to  the  type,  of  firearms.  It  would  be  good  sense 
for  the  law  to  require,  in  many  cases,  an  attempt  to  escape 
from  a  hand  to  hand  encounter  with  fists,  clubs,  and  even 
knives,  as  a  condition  of  justification  for  killing  in  self- 
defense;  while  it  would  be  rank  folly  to  so  require  when 
experienced  men  armed  with  repeating  rifles  face  each  other 
in  an  open  space,  removed  from  shelter,  with  intent  to  kill 
or  do  great  bodily  harm  What  might  be  a  reasonable 
chance  for  escape  in  the  one  situation  might  in  the  other  be 
certain  death," 

And  a  number  of  western  states  refuse  to  apply  the 
doctrine  of  the  necessity  of  the  "retreat  to  the  wall"  at 
all,  where  the  one  pleading  self-defense  to  a  charge  of  homi- 
cide has  not  been  the  aggressor,  or  mixed  up  in  a  brawl 
with  the  deceased.  None  of  the  courts  apply  the  doctrine 
where  the  man  has  been  attacked  in  his  home. 

When  the  one  pleading  self-defense  to  a  charge  of  homi- 
cide has  been  the  aggressor,  or  been  mixed  up  in  a  brawl 
with  the  deceased,  all  the  courts  agree  that  he  must  have 
withdrawn  from  the  combat  and  "retreated  to  the  wall" 
or  his  defense  will  not  be  good.  But  he  may  have  with- 
drawn from  the  combat  although  his  adversary  may  not 
have  withdrawn  from  the  pursuit.  Thus,  in  Stoffer  v. 
State,"  the  defendant  had  been  the  original  aggressor,  but 
had  declined  further  combat,  and  had  retreated  rapidly  a 
distance  of  one  hundred  and  fifty  feet  and  taken  refuge  in 
the  house  of  a  stranger,  where  he  had  shut  and  held  the 
door.  This  had  been  forcibly  opened  by  his  adversary  and 
two  others,  whereupon  they  assaulted  him  and  the  killing 
ensued.    The  court  said : 

10  state  V.  Gardner,  96  Minn.  318.        "  15  Ohio  Stat.  47. 


52  CEIMINAL  LAW 

"A  line  of  distinction  must  be  somewhere  drawn,  whicli, 
leaving  the  originator  of  a  combat  to  the  necessary  conse- 
quences of  his  illegal  and  malicious  conduct,  shall  neither 
impose  upon  him  punishments,  or  disabilities  unknown  to 
the  law,  nor  encourage  his  adversary  to  wreak  vengeance 
upon  him,  rather  than  resort  to  the  legal  tribunals  for 
redress;  and  we  think,  upon  principle  and  the  decided 
weight  of  authority,  it  lies  precisely  where  we  have  already 
indicated.  While  he  remains  in  the  conflict,  to  whatever 
extremity  he  may  be  reduced,  he  cannot  be  excused  for 
taking  the  life  of  his  antagonist  to  save  his  own.  In  such 
case,  it  may  be  rightfully  and  truthfully  said  that  he 
brought  the  necessity  upon  himself  by  his  own  criminal 
conduct. 

''But  when  he  has  succeeded  in  wholly  withdrawing  him- 
self from  the  contest,  and  that  so  palpably  as,  at  the  same 
time,  to  manifest  his  own  good  faith  and  to  remove  any 
just  apprehension  from  his  adversary,  he  is  again  remitted 
to  his  right  of  self-defense,  and  may  make  it  effectual  by 
opposing  force  to  force,  and,  when  all  other  means  have 
failed,  may  legally  act  upon  the  instinct  of  self-preserva- 
tion, and  save  his  own  life  by  sacrificing  the  life  of  one  who 
persists  in  endangering  it." 

But  ''knowledge  of  the  withdrawal  of  the  assailant  in 
good  faith  from  the  combat  must  be  brought  home  to  tlie 
assailed.  "^2  And  so,  where  the  original  assailant  had  so 
injured  his  antagonist  that  the  latter  was  unable  to  com- 
prehend that  the  other  had  withdrawn  from  the  fight,  and 
continued  to  follow  him  to  his  own  death,  it  was  held  that 
the  defendant  had  brought  the  necessity  of  killing  on  him- 
self and  was  not  excusable.^^ 

§  57.  Anticipated  Attack.  A  man  will  be  excusable  if 
he  goes  where  he  has  a  right  to  go  although  he  may  have 
anticipated  an  attack  and  gone  armed  because  of  it.  Thus 
in  State  v.  Evans,^^  the  defendant  had  informed  a  tenant 
of  his  wife  that  he  must  leave  the  premises  at  the  end  of 
the  term,  whereupon  the  latter  made  threats  against  the 
defendant  which  resulted  in  the  tenants  being  bound  over 
to  keep  the  peace.     This  so  enraged  the  tenant  that  he 

12  People  V.  Button,  106  CaL  628.  is  Id.  i*  124  Mo.  397. 


CRIMmAL  LAW  53 

threatened  to  take  the  defendant's  life.  The  latter  armed 
himself,  and  shortly  afterwards  went  upon  the  rented 
premises  to  see  to  the  division  of  the  crop.   The  court  said : 

**The  fact  that  the  defendant  expected  an  attack  did  not 
abate  by  one  jot  or  tittle  his  right  to  arm  himself  in  his 
own  proper  defense,  nor  to  go  where  he  would,  after  thus 
arming  himself,  so  long  as  he  did  no  overt  act  or  made  no 
hostile  demonstration  towards  Fine.  Defendant  was  where 
he  had  a  right  to  be ;  the  land  belonged  to  his  wife ;  he  had 
a  right  to  see  that  proper  division  was  made  of  the  crop, 
and  to  oversee  such  division.  If  the  mere  expectation  of 
an  assault  from  an  adversary  is  to  deprive  the  expectant 
of  the  right  of  self-defense,  merely  because  he  goes  armed 
in  the  vicinity  of  his  enemy,  or  goes  out  prepared  upon  the 
highway  where  he  is  likely  at  any  moment  to  meet  him,  then 
he  has  armed  himself  in  vain,  and  self-defense  ceases 
wherever  expectation  begins." 


DEFENSE  OF  DWELLING  AND  PROPERTY 

§  58.  Defense  of  Dwelling.  The  protection  thrown  by 
the  law  around  a  man's  dwelling  is  an  extension  of  the  pro- 
tection thrown  around  his  person.  If  the  attack  on  his 
dwelling  causes  a  reasonable  apprehension  of  great  bodily 
harm  to  the  inmates  thereof,  he  is  entitled  to  resist  that 
attack  at  the  threshold,  and,  if  necessary,  kill  the  attacking 
party.  A  burglary  may  fairly  be  said  to  cause  reasonable 
apprehension  of  great  bodily  harm,  and  the  inmate  of  the 
house  may  act  upon  appearances,  and  does  not  act  at  his 
peril  in  case  those  appearances  turn  out  to  be  false. 

But,  that  a  man's  house  is  his  castle  does  not  mean  that 
he  can  resist  every  entrance  to  his  house  to  the  death, 
where  the  entrance  cannot  otherwise  be  prevented.  Thus, 
in  the  case  of  unlawful  service  of  process,  the  killing  cer- 
tainly cannot  be  justified  where  the  entrance  to  the  house 
could  have  been  prevented  by  less  extreme  means,  and  even 
in  such  a  case  if  the  entrance  is  forcible  and  cannot  other- 
wise be  prevented,  the  law  considers  that  the  wrong  should 
be  submitted  to,  rather  than  life  taken.    Such  a  state  of 


64  CEIMINAL  LAW 

facts,  however,  may  be  sufficient  provocation  to  reduce  the 
crime  from  murder  to  manslaughter. 

Only  so  much  force  is  allowable  in  repelling  a  trespass 
as  is  necessary  to  accomplish  that  object,  and  it  has  been 
held  that  ''a  kick  is  not  a  justifiable  mode  of  turning  a 
man  out  of  your  house,  though  he  be  a  trespasser.  "^^  And 
in  another  case,^®  the  court  said: 

''When  a  trespasser  or  unwelcome  visitor  invades  the 
premises  of  another,  the  latter  has  the  right  to  remove  him, 
and  the  law  requires  that  he  should  first  request  him  to 
leave,  and,  if  he  does  not  do  so,  that  he  should  lay  his  hands 
gently  upon  him;  and,  if  he  resists,  he  may  use  sufficient 
force  to  remove  him,  taking  care,  however,  to  use  no  more 
force  than  is  necessary  to  accomplish  that  object. ' ' 

In  this  case  the  intruder  had  been  standing  at  the  door 
of  the  defendant's  house  ''reaching  in  the  door  and  cutting 
with  a  razor,"  while  the  defendant  was  striking  at  him 
with  a  whipstaff,  and  the  court  held  that  the  jury  would 
have  been  warranted  in  finding  that  it  was  the  purpose  of 
the  defendant  to  expel  him  from  the  house,  and  that  in 
such  case  it  was  for  them  to  determine  whether  more  force 
had  been  used  than  was  necessary. 

§59.  Defense  of  Property.  What  has  just  been  said 
with  regard  to  trespassers  to  dwellings  applies  equally  to 
trespassers  to  property  in  general,  for  where  the  wrong  to 
the  dwelling  does  not  create  a  reasonable  apprehension  of 
great  bodily  harm  to  the  inmates,  the  dwelling  is  not  to  be 
distinguished  from  other  forms  of  property. 

§  60.  Recaption  of  Property.  When  property  is  wrong- 
fully taken  from  a  man  he  may  *' regain  his  momentarily 
interrupted  possession  by  the  use  of  reasonable  force,  short 
of  wounding  or  the  employment  of  a  dangerous  weapon."" 
And  "it  has  been  held  that,  even  where  a  considerable  time 
had  elapsed  between  the  wrongful  taking  of  the  defendant's 
property  and  the  assault,  the  defendant  had  a  right  to 

15  Wild's  Case,  2  Lewin  214.      1 7  Commonwealth  v.  Donahue,  148  Mass.  529, 

16  State  V.  Taylor,  82  N.  C.  554. 


CRIMINAL  LAW  65 

regain  possession  by  reasonable  force,  after  demand  upon 
the  third  person  in  possession."  ^^ 

COERCION 

§  61.  Compulsion.  The  principle  is  far  reaching  in  the 
criminal  law  that  a  man  is  not  liable  except  for  his  volun- 
tary acts,  and  we  have  seen  that  the  wife's  responsibility 
for  crime  is  materially  lessened  by  the  general  presumption 
that  acts  done  in  the  husband's  presence  are  done  under 
his  coercion.*®  *'But  the  impelling  danger  should  be  pres- 
ent, immanent,  and  impending,  and  not  to  be  avoided.  "^'^ 
And  even  then  it  may  not  be  a  sufficient  excuse.  Thus,  in 
Res  Publica  v.  McCarty,^*  where  the  defendant  was  charged 
with  high  treason  for  joining  the  armies  of  the  King  of 
Great  Britain,  the  court  instructed  the  jury  that  ''in  the 
eye  of  the  law,  nothing  will  excuse  the  act  of  joining  an 
enemy  but  the  fear  of  immediate  death — not  the  fear  of  any 
inferior  personal  injury,  nor  the  apprehension  of  an  out- 
rage upon  property.  But,  had  the  defendant  enlisted  merely 
from  the  fear  of  famishing,  and  with  a  sincere  intention  to 
make  his  escape,  the  fear  could  not  surely  always  continue, 
nor  could  his  intention  remain  unexecuted  for  so  long  a 
period." 

And  it  is  generally  considered  that  threats  of  immediate 
death  will  not  justify  taking  the  life  of  an  innocent  third 
party.  In  such  a  case  the  person  threatened  is  justified 
in  taking  the  life  of  those  threatening  him  rather  than  that 
of  the  innocent  man.22 

§  62.  Obedience  to  Orders.  The  mere  command  of  an- 
other, such  as  a  parent,  or  master,  or  superior  police  offi- 
cer, will  not  relieve  one  of  responsibility  for  crime,  but 
where  one  is  a  subordinate  in  an  organization  like  the  army 
where  strict  discipline  prevails,  he  may  be  placed  in  a  very 
delicate  situation.  To  disobey  an  order  may  subject  him 
to  military  discipline,  to  obey  it,  may  subject  him  to  the 

18  See  supra,  footnote  17.  21  2  Dall.  86. 

10  See  supra,  §  48.  22  Arp  v.  State,  97  Ala.  5. 

20  Bain  v.  State,  67  Miss.  557. 


56  CRIMINAL  LAW 

criminal  law  of  the  land.  The  law  on  this  point  is  well  laid 
down  in  the  case  of  Riggs  v.  State,^^  where  the  defendant 
had  been  found  guilty  of  the  murder  of  one  Captain  Thorn- 
hill,  although  the  killing  had  been  done  under  the  orders  of 
his  superiors.    The  court  said : 

**A  soldier  in  the  service  of  the  United  States  is  bound 
to  obey  all  lawful  orders  of  his  superior  officers,  or  officers 
over  him,  and  all  he  may  do  in  obeying  such  lawful  orders 
constitutes  no  offense  as  to  him. 

*'But  an  order,  illegal  in  itself,  and  not  justified  by  the 
rules  and  usages  of  war,  or  in  its  substance  being  clearly 
illegal,  would  afford  a  private  no  protection  for  a  crime 
committed  under  such  order,  provided  the  act  with  which 
he  may  be  charged  has  all  the  ingredients  in  it  which  may 
be  necessary  to  constitute  the  same  a  crime  in  law.  Any 
order  given  by  an  officer  to  his  private,  which  does  not 
expressly  and  clearly  show  on  its  face,  or  in  the  body 
thereof,  its  own  illegality,  the  soldier  would  be  bound  to 
obey,  and  such  order  would  be  a  protection  to  him.  No 
person  in  the  military  service  has  any  right  to  commit  a 
crime  in  law,  contrary  to  the  rules  and  usages  of  war,  and 
outside  of  the  purposes  thereof;  and  the  officers  are  all 
amenable  for  all  crimes  thus  committed,  and  the  privates 
likewise  are  answerable  to  the  law  for  crimes  committed 
in  obeying  all  orders,  illegal  on  their  face  and  in  their  sub- 
stance, when  such  illegality  appears  at  once  to  a  common 
mind  on  hearing  them  read  or  given. ' ' 

And  the  same  principle  was  applied  where  a  member  of  a 
military  guard  on  a  United  States  military  reservation  was 
ordered  to  shoot  a  soldier  who  had  committed  a  military 
offense  and  was  endeavoring  to  escape.^^ 

NECESSITY 

§63.  Inevitable  Necessity.  When  a  man's  hand  is 
seized  by  a  person  of  such  superior  strength  as  to  be  irre- 
sistible, and  is  used  against  his  will,  to  strike  a  blow,  it 
is  clear  that  not  only  is  the  act  not  his  voluntary  act,  but 
that  it  cannot  be  properly  termed  his  act  at  all.  It  is  to  be 
distinguished  from  the  cases  referred  to  in  the  preceding 

23  3  Cold.  85.  24  u.  S.  V.  Clark,  31  Fed.  Bep.  710. 


CRIMINAL  LAW  57 

section,  where,  although  the  acts  were  done  under  duress, 
there  was  a  chance  between  submission  to  the  threat  and 
the  commission  of  the  act.  The  non-liability  for  the  crime 
is  even  clearer  in  this  case  than  the  other.  The  one  whose 
arm  is  seized  is  no  more  guilty  of  the  crime  than  is  a  pistol 
with  which  a  man  is  shot.  Thus  in  the  case  of  the  Brig 
William  Gray,^^  where  the  vessel  had  touched  at  one  of  the 
"West  Indies  contrary  to  the  Embargo  Act,  it  was  claimed 
that  she  had  been  driven  out  of  her  course  by  storms,  tem- 
pests, stress  of  weather,  and  necessity,  and  this  was  held  a 
sufficient  excuse,  while  the  fact  that  the  driver  of  a  wagon 
in  another  case,-®  was  caught  in  a  block  and  thus  compelled 
to  suffer  the  vehicle  to  stop  in  the  street,  was  held  to  take 
the  case  out  of  the  municipal  ordinance  penalizing  any  one 
for  suffering  his  vehicle  to  stop  more  than  twenty  minutes 
in  the  streets. 

§64.  Extreme  Need.  Lord  Bacon  was  of  the  opinion 
that  if  a  man  stole  food  to  satisfy  his  present  hunger,  he 
was  not  guilty  of  larceny,  but  Lord  Hale  denied  that  such 
was  the  law  of  England,  and  held  that  if  a  person,  being 
under  necessity  for  want  of  victuals  or  clothes,  should  take 
them,  it  would  be  felony,  and  such  has  been  deemed  to  be 
the  law  since.  In  the  case  of  the  United  States  v.  Holmes,^^ 
Baldwin,  J.,  charged  the  jury  that  in  case  a  ship  was  in  no 
danger  of  sinking,  but  all  sustenance  was  exhausted,  and  a 
sacrifice  of  one  person  was  necessary  to  appease  the  hunger 
of  the  others,  the  selection  should  be  by  lot ;  but  it  is  doubt- 
ful whether  even  in  such  a  case  the  killing  would  be  excusa- 
ble, and  the  remark  was  not  required  by  the  facts  of  the 
case.  The  actual  decision  was  that,  even  in  dire  need,  the 
crew  had  no  right  to  throw  passengers  overboard  to  save 
the  boat  from  sinking,  as  their  own  safety  was  secondary  to 
the  duty  they  owed  the  passengers. 

In  the  case  of  Regina  v.  Dudley,^®  two  men  and  a  boy 
were  cast  away  on  the  high  seas  sixteen  hundred  miles  from 
land  and  compelled  to  put  out  in  an  open  boat.    After  drift- 

26  1  Paine  16.  2t  i  Wall.  Jun.  1,  22. 

29  Commonwealth  v.  Brooks,  99  Mass  434.  28  15  Cox  C.  C.  624. 


58  CEIMINAL  LAW 

ing  eight  days  without  food  and  six  days  without  water,  the 
men  killed  the  boy  and  fed  upon  his  body  four  days,  when 
they  were  picked  up  by  a  passing  vessel.  It  was  found 
that  if  the  men  had  not  done  this  they  would  probably  have 
died  of  famine,  and  that  the  boy,  being  in  a  much  weaker 
condition,  would  likely  have  died  before  them.  Notwith- 
standing this  the  court  held  them  guilty  of  murder.    It  said : 

**To  preserve  one's  life  is,  generally  speaking,  a  duty; 
but  it  may  be  the  plainest  and  the  highest  duty  to  sacrifice 
it.  War  is  full  of  instances  in  which  it  is  a  man's  duty,  not 
to  live,  but  to  die.  The  duty,  in  case  of  shipwreck,  of  a 
captain  to  his  crew,  of  the  crew  to  the  passengers,  of  sol- 
diers to  women  and  children,  as  in  the  noble  case  of  the 
Birkenhead,  these  duties  impose  on  men  the  moral  neces- 
sity, not  of  the  preservation,  but  of  the  sacrifice  of  their 
lives  for  others. 

"It  is  not  needful  to  point  out  the  awful  danger  of  admit- 
ting the  principle  which  has  been  contended  for.  "Who  is 
to  be  the  judge  of  this  sort  of  necessity?  By  what  means 
is  the  comparative  value  of  lives  to  be  measured?  Is  it 
to  be  strength,  or  intellect,  or  what?  It  is  plain  that  the 
principle  leaves  to  him  who  is  to  profit  by  it  to  determine 
the  necessity  which  will  justify  him  in  deliberately  taking 
another's  life  to  save  his  own.  In  this  case  the  weakest, 
the  youngest,  the  most  unresisting,  was  chosen.  Was  it 
more  necessary  to  kill  him  than  one  of  the  grown  men? 
The  answer  must  be.  No." 

CUSTOM 

§  65.  Custom.  While  a  custom  may  supplement  the  law 
and  thus  affect  the  rights  of  parties  acting  with  knowledge 
of  it,  and  although  it  may  even  yet,  as  has  been  the  case 
especially  in  the  remote  past,  ripen  into  law,  yet  if  it*  is 
contrary  to  the  law  it  is  invalid  and  is  no  excuse  for  crime. 
However  lenient  the  jury  may  be,  the  law  does  not  hold 
a  man  less  guilty  because  the  crime  has  become  so  common 
that  the  community  may  have  become  callous  to  it. 

In  the  case  of  Eegina  v.  Eeed,^^  it  appeared  that  the 
defendants  had  been  bathing  near  a  public  footway  where, 

39  12  Cox  c.  c.  1. 


CRIMINAL  LAW  59 

for  more  than  half  a  century  batliing  had  taken  place  with- 
out any  complaint,  and  that  there  had  not  been  on  the  part 
of  the  defendants  any  exposure  beyond  what  was  necessa- 
rily incident  to  the  bathing  itself,  to  the  undressing  on  the 
land  side  of  the  path,  and  passing  naked  to  and  from  the 
sea  across  the  path.  The  pathway  was  one  of  the  most 
pleasant  walks  in  the  neighborhood  and  frequented  by 
women  except  in  the  bathing  season.    The  court  said  that 

''It  was  impossible  to  set  up  a  customary  right  to  bathe 
close  to  the  path  in  such  a  way  as  to  violate  public  decency, 
and  thus  to  be  inconsistent  with  the  use  of  the  footway  by 
any  of  the  Queen's  subjects,  especially  of  the  female  sex. 
No  one  could  suppose  that  respectable  women  could  fre- 
quent the  foot  path  where  men  were  in  the  habit  of  bathing, 
and  were  constantly  seen  in  a  state  of  nudity.  It  was  clear, 
therefore,  that  the  usage  so  to  bathe,  however  long  it  might 
have  existed,  could  not  be  upheld,  and  that  those  persons 
who  thus  exposed  themselves  upon  or  near  to  a  public 
footway  were  liable  to  be  indicted  for  indecency." 


CHAPTER  VI 
PARTIES  IN  CRIME 

COMBINATIONS  IN  CRIME 

§66.  Common  Design.  It  is  clear  that  where  two  or 
more  unite  to  commit  a  crime,  each  is  liable  for  acts  coming 
within  the  common  purpose,  and  if  some  further  crime  is 
the  natural  and  probable  consequence  of  the  one  intended, 
and  actually  results  from  carrying  it  out,  each  is  liable  for 
such  crime.  And  it  is  generally  held  where  the  common 
purpose  is  to  commit  the  more  serious  felonies,  such  as 
burglary  and  arson  and  robbery,  and  homicide  results  from 
the  carrying  out  of  the  common  purpose,  even  though  it 
could  not  have  been  foreseen  as  the  natural  and  probable 
consequence  thereof,  that  all  those  engaged  in  the  common 
purpose  will  be  guilty  of  murder.  And  where  the  common 
purpose,  say,  to  rob,  is  not  directed  towards  any  one  person, 
but  is  general,  those  participating  in  the  general  purpose, 
though  not  present,  nor  cognizant  of  the  particular  robbery, 
will  be  held  for  it. 

But  where  the  common  purpose  is  to  rob  A,  those  not 
present  and  abetting  will  not  be  liable  if  the  rest  rob  B; 
where  the  common  purpose  is  to  burn  a  house,  those  not 
present  and  abetting  will  not  be  liable  if  the  rest  commit 
larceny.  And  if  the  common  purpose  is  to  commit  robbery, 
those  not  present  and  abetting  will  not  be  liable  for  a  mur- 
der not  resulting  from  the  robbery,  nor  committed  in  pur- 
suance of  it,  but  growing  out  of  the  particular  malice  of 
individuals. 

It  is  often  a  difficult  matter  to  determine  whether  the 
crime  carried  out  is  a  different  one  from  that  advised,  or 
the  same  one  carried  out  in  a  different  manner.  Thus  in 
Thornton  v.  State,^  the  defendant  had  loaned  the  one  who 

1 19  Ga.  437. 
60 


CRIMINAL  LAW  61 

had  done  the  killing  a  pistol,  and  told  or  advised  him  to  kill 
one  Gordon  with  it  if  the  latter  should  again  rob  him  at 
cards.  **His  advice  or  instruction  to  kill  Gordon  was,  there- 
fore, conditional,  and  dependant  upon  the  event  that  Gor- 
don should  again  rob  Amos  at  cards."  There  was  nothing 
in  the  evidence  to  show  that  later  Gordon  had  robbed  Amos 
at  cards,  or  that  the  shooting  had  resulted  from  it,  and  the 
court  held  that  the  act  did  not  come  within  the  common 
purpose.    But  this  decision  must  be  doubted. 

In  the  famous  case  growing  out  of  the  Haymarket  riots^ 
in  Chicago,  certain  revolutionary  organizations  had  agreed, 
among  other  things,  to  throw  bombs  into  the  various  police 
stations  and  to  shoot  the  policemen  as  they  came  out.  The 
following  evening  a  public  meeting  was  held  at  the  Hay- 
market  and  incendiary  speeches  made  by  various  of  the 
defendants.  As  the  closing  speech  was  being  made  several 
companies  of  policemen  marched  from  the  neighboring 
police  station  to  disperse  the  crowd,  when  one  of  the  bombs 
prepared  by  the  revolutionary  organization  was  thrown  into 
their  midst,  and  shots  fired  into  their  ranks  by  members  of 
the  armed  sections.  Seven  policemen  were  killed  and  sixty 
more  were  seriously  wounded.  It  was  conceded  that  no 
one  of  the  convicted  defendants  had  thrown  the  bomb  with 
his  own  hands,  but  it  was  held  that  the  mode  of  attack  as 
made  corresponded  sufficiently  with  the  mode  of  attack  as 
planned  to  make  all  those  participating  in  the  latter  respon- 
sible for  the  murder. 

**The  general  resolution  of  the  confederates  need  not  be 
proved  by  direct  evidence.  It  may  be  inferred  from  cir- 
cumstances ;  by  the  number,  aims,  and  behavior  of  the  par- 
ties at,  or  before,  the  scene  of  action."^  Nor,  indeed,  need 
the  common  purpose  find  any  very  definite  mode  of  expres- 
sion in  the  minds  of  those  participating  in  it.  Thus  the 
common  design  of  the  mob  may  be  of  the  most  general  char- 
acter. And  in  Regina  v.  Swindall,"*  where  the  prisoners  had 
been  in  company  and  had  raced  furiously  along  the  road, 

2  Spies  V.  People,  122  III.  1.  *  2  C.  &  K.  230. 

8  Ruloff  V.  People,  45  N.  Y.  213. 


62  CRIMINAL  LAW 

and  it  was  uncertain  whicli  had  run  over  and  killed  an  old 
man,  it  was  held  that  both  were  guilty  of  manslaughter. 
Again  the  common  design  may  result  from  aid  voluntarily 
given  and  received  in  a  fight.  But  if  the  aid  is  not  accepted 
and  wished  for,  the  one  on  whom  it  is  forced  may  not  be 
responsible  for  its  consequences.^  Those  concerned  in 
the  common  design  need  not  be  what  would  ordinarily  be 
thought  of  as  coconspirators.  They  may  bear  the  relation 
to  each  other  of  principal  and  agent. 

But  the  law  leaves  open  the  door  for  repentance.  This 
cannot  wipe  out  what  has  already  been  done,  but  it  may 
relieve  from  responsibility  for  further  acts  done  by  others 
in  pursuance  of  the  old  design.  Thus  in  State  v.  Allen,^ 
where  the  defendant  was  charged  with  a  homicide  com- 
mitted in  an  attempt  to  escape  from  the  State  prison,  it 
was  urged  that  he  had  abandoned  the  attempt  before  the 
fatal  shot  was  fired.    The  court  said : 

"Until  the  fatal  shot  there  was  locus  penitenticB  (place 
of  repentance).  To  avail  himself  of  it  Allen  must  indeed 
have  informed  Hamlin  of  his  change  of  purpose,  but  such 
information  might  be  by  words  or  acts;  and  if  with  the 
intention  of  notifying  Hamlin  of  his  withdrawal  from  the 
conspiracy  he  did  acts  which  should  have  been  effectual  for 
that  purpose,  but  which  did  not  produce  upon  the  mind  of 
Hamlin  the  effect  which  he  intended,  and  which  they  nat- 
urally should  have  produced,  such  acts  were  proper  for  the 
jury  to  consider  in  determining  the  relation  of  Allen  to  the 
crime  which  was  afterwards  committed." 

§  67.  Principal  and  Agent.  The  common  law  sometimes 
holds  a  principal  civilly  responsible  for  acts  of  those  in 
his  employ  where  it  does  not  hold  him  criminally  respon- 
sible. The  civil  responsibility  is  based  somewhat  upon  the 
idea  that  the  business  should  stand  the  loss;  the  criminal 
responsibility  is  based  on  the  idea  of  personal  guilt.  And 
even  where  the  principal  has  ratified  the  act  he  is  not  liable 
because  his  guilty  intent  did  not  exist  at  the  time  of  the 
act."^    But  where   negligence   is  sufficient   to   satisfy   the 

6  People  V.  Elder,  100  Mich.  515.  e  47  Conn.  121. 


CEIMINAL  LAW  63 

requirement  of  the  guilty  mind,  as,  for  instance,  in  man- 
slaughter, the  negligence  of  the  principal  in  choosing  his 
servant  or  in  giving  him  instructions  may  make  him  crimi- 
nally responsible  for  an  act  of  which  the  agent  was  the 
immediate  cause.  In  such  a  case  it  is  for  the  consequences 
of  his  own  negligence  in  choosing  the  servant,  or  in  giving 
instructions,  that  he  is  held.  And  where  a  principal  was 
prosecuted  for  the  sale  of  liquor  made  to  a  minor  by  a  bar- 
tender, the  court  required  the  jury  to  be  '  *  satisfied  that  the 
master  sincerely  and  honestly  intended  that  his  instruc- 
tions should  be  obeyed  in  good  faith,  and  that  he  was  not 
negligent  or  careless  in  the  selection  of  his  clerks,  or  in 
the  regulations  and  precautions  which  he  prescribed  for 
their  guidance."^  Statutes,  however,  frequently  hold  prin- 
cipals to  fully  as  strict  a  criminal  as  civil  liability  where 
the  unlawful  sale  of  liquor  or  other  like  offense  is  involved, 
even  when  the  principal  may  have  forbidden  the  sale. 

The  agent  may  be  an  innocent  one.^  ''Crimes  may  be 
perpetrated  through  the  instrumentality  of  living  agents 
in  the  absence  of  the  principal,  and  our  law  books  are  full 
of  such  cases.  Where  poison  is  knowingly  sent  to  be 
administered  as  medicine  by  attendants  who  are  ignorant 
that  it  is  poison,  and  death  ensues,  the  person  who  thus 
procures  the  poison  to  be  taken  is  guilty  of  murder.  So, 
where  a  child  without  discretion,  an  idiot,  or  a  madman,  is 
induced  by  a  third  person  to  do  a  felonious  act,  the  insti- 
gator alone  is  guilty,  and  although  not  present  at  the  per- 
petration of  the  crime,  he  is  a  principal  felon.  "^®  In  such 
a  case  there  is  properly  no  ''combination  in  crime'*  as  in 
the  case  of  the  responsible  agent.  In  the  latter  case  both 
are  parties  to  the  crime,  and  the  principal  is  ordinarily  an 
accessory  before  the  fact.  In  the  case  of  the  innocent 
agent,  the  principal  is  the  sole  criminal. 

As  we  have  seen,^^  the  command  of  another  to  do  an 
unlawful  act  does  not  excuse  one  unless  it  is  accompanied 

1  See  supra,  §  32.  »  See  supra,  §  21. 

•  Commonwealth  v.  Stevens,  lo  People  v.  Adams,  3  Denio  190. 

155  Mass.  291.  n  See  svpra,  §  63. 


64  CRIMINAL  LAW 

by  coercion,  although  this  coercion  is  presumed  in  most 
cases  where  the  wife  commits  a  crime  in  the  presence  of 
her  husband.^2 

§  68.  Statutory  Crime.  Ordinarily,  one  who  solicits  the 
doing  of  a  crime  is  a  party  to  that  crime,  but  we  have  seen,^^ 
that  where  a  statute  punished  the  selling  of  liquor,  it  was 
held  that  this  was  directed  at  the  seller  alone,  although 
there  could  not  have  been  a  seller  without  a  buyer.  A  simi- 
lar result  was  reached  in  Eegina  v.  Tyrrell,^*  where  the 
defendant,  a  girl,  was  charged  with  aiding  and  abetting 
one  Ford  in  the  commission  of  the  misdemeanor  of  having 
unlawful  carnal  knowledge  of  her  while  she  was  between 
the  ages  of  thirteen  and  sixteen,  against  the  form  of  the 
statute,  etc.  The  court  quashed  the  conviction.  Lord 
Coleridge  said : 

''It  it  impossible  to  say  that  the  Act,  which  is  absolutely 
silent  about  aiding  or  abetting,  or  soliciting  or  inciting,  can 
have  intended  that  the  girls  for  whose  protection  it  was 
passed  should  be  punishable  under  it  for  the  offenses 
committed  upon  themselves. ' ' 

PRINCIPALS 

§  69.  Principals  in  the  First  Degree.  Parties  in  crime 
are  either  principals  or  accessories.  To  be  a  principal  one 
must  commit,  or  assist  in  the  commission  of,  the  criminal 
act.  This  leaves  those  who  participate  in  the  common  pur- 
pose, but  merely  by  way  of  advice,  instigation,  or  command, 
as  accessories.^^  Principals  are  divided  into  principals  of 
the  first  and  second  degree.  The  distinction  is  one  which 
was  formerly  much  more  important  than  it  is  today,  as  it 
has  been  abolished  in  many  states  by  statute.  Still  it 
requires  some  notice.  Those  who  actually  commit  the 
crime  are  principals  in  the  first  degree ;  those  present  who 
assist  in  its  commission  are  principals  in  the  second  degree. 
Thus,  the  man  who  fires  the  shot  in  a  case  of  homicide 
is  a  principal  in  the  first  degree.    His  friend,  who  stands 

12  See  supra,  §  48.  "  1  Q.  B.  710  (1894). 

13  See  supra,  §  31,  is  See  infra,  §  73. 


CRIMINAL  LAW  65 

by  his  side  and  prevents  a  third  party  from  interfering 
with  the  shooting,  is  a  principal  in  the  second  degree.  It 
is  not  necessary  that  the  principal  in  the  first  degree  should 
himself  complete  the  crime. 

Thus,  one  burglar  might  break  open  a  house,  and  the 
other  burglar  make  the  entry.  They  would  both  be  princi- 
pals in  the  first  degree,  at  least  if  both  acts  were  done  at 
practically  the  same  time.  So,  too,  where  one  party  printed 
a  forged  bank  note,  a  second  impressed  the  date  line  and 
number,  and  a  third  added  a  signature,  it  was  held  that 
they  were  all  principals  in  the  first  degree  as  each  had 
aided  in  completing  some  part  of  the  forgery,  even  though 
the  one  who  had  done  the  printing  was  not  present  when 
the  forgery  was  completed.^^ 

§70.  Principals  in  the  Second  Degree.  Principals  in 
the  second  degree  are  those  present,  aiding  and  abetting 
the  commission  of  the  crime.  This  presence  may,  however, 
be  a  constructive  presence.  It  need  not  involve  being  within 
sight  or  sound  of  the  place  where  the  crime  is  committed. 
Thus,  in  Commonwealth  v.  Knapp,^^  where  the  evidence  had 
tended  to  show  that  the  principal  felon  had  entered  the 
house  and  perpetrated  the  murder  while  the  defendant  was 
in  a  street  about  three  hundred  feet  distant,  the  court  said : 

''The  person  charged  as  principal  in  the  second  degree 
must  be  present,  and  he  must  be  aiding  and  abetting  the 
murder.  But  if  the  abettor,  at  the  time  of  the  commission 
of  the  murder,  were  assenting  to  the  murder,  and  in  a  situa- 
tion where  he  might  render  some  aid  to  the  perpetrator, 
ready  to  give  it  if  necessary,  according  to  an  appointment 
or  agreement  with  him  for  that  purpose,  he  would,  in  the 
judgment  of  the  law,  be  present  and  aiding  in  the  commis- 
sion of  the  crime.  It  must,  therefore,  be  proved  that  the 
abettor  was  in  a  situation  in  which  he  might  render 
his  assistance  in  some  manner  to  the  commission  of  the 
offense. ' ' 

And  where  one  of  the  confederates  had  lured  the  owner 
of  the  store  to  a  party  about  a  mile  distant,  while  the 

!•  Rex  V.  Bingley,  R,  &  R.  446.  J 7  9  pick.  496. 


66  CEIMIKAL  LAW 

others  were  breaking  into  the  store,  it  was  held  that  he 
was  giving  assistance  and  was  constructively  present.^^ 

What  is  meant  by  ''aiding  and  abetting"  was  discussed 
in  the  case  of  Regina  v.  Coney.^^  It  appeared  in  that  case 
that  professional  prize  fighters  had  engaged  in  a  fight  near 
a  certain  road,  and  that  the  defendants  had  been  onlookers. 
In  the  trial  court  the  jury  had  been  directed  that  *'if  they 
were  not  casually  passing  by,  but  stayed  at  the  place,  they 
encouraged  it  by  their  presence,  although  they  did  not  say 
or  do  anything."  This  the  higher  court  held  to  be  erro- 
neous.   It  said: 

' '  Now  it  is  a  general  rule  in  the  case  of  principals  in  the 
second  degree  that  there  must  be  participation  in  the  act, 
and  that  although  a  man  is  present  whilst  a  felony  is  being 
committed,  if  he  takes  no  part  in  it,  and  does  not  act  in 
concert  with  those  who  commit  it,  he  will  not  be  a  principal 
in  the  second  degree  merely  because  he  does  not  endeavor 
to  prevent  the  felony,  or  apprehend  the  felon." 

The  court  further  held  that  mere  presence  unexplained 
might  be  evidence  of  encouragement,  and  so,  of  guilt,  but 
that  it  was  not  conclusive  proof  thereof. 

ACCESSORIES 

§  71.  In  What  Crimes  There  Are  Accessories.  The  dis- 
tinction between  principals  and  accessories  exists  only 
with  regard  to  felonies.    Lord  Coke  says : 

''In  the  highest  offense  and  lowest  injury,  there  are  no 
accessories,  but  all  are  principals ;  as  in  treason,  petit  lar- 
ceny, and  trespass.  And  the  law  has  been  settled  for  nearly 
two  hundred  years  that  in  petit  larceny  there  can  be  no 
accessory,  on  account  of  the  smallness  of  the  felony.  Those 
who  procure  aid  or  advise,  in  the  commission  of  the  offense, 
are  principals.  And  those  who  merely  assisted  the  escape 
of  the  perpetrator  of  the  offense  were  not,  at  common  law, 
regarded  as  criminal."  ^^ 

§  72.    Accessories  Before  the  Fact.    At  the  common  law 

18  Breese  v.  State,  12  Ohio  Stat.  146.       20  Ward  v.  People,  6  HiU  144. 
i»  8  Q.  B.  Div.  534. 


CRIMINAL  LAW  67 

an  accessory  could  not  be  put  on  trial  without  his  consent 
before  his  principal.  The  reason  of  this  was  that,  if  there 
were  no  principal,  there  could  be  no  accessory,  and  the 
law  presumed  no  one  guilty  before  conviction.  Thus,  if 
the  principal  were  dead,  an  accessory  could  not  be  con- 
victed. But  in  a  statute  of  the  time  of  Anne,  which  made 
the  receiver  of  stolen  goods  an  accessory,  it  was  provided 
that  if  the  principal  was  not  amenable  to  the  process  of 
the  law,  then  the  accessory  might  be  indicted,  and  many 
statutes  today  either  provide  that  the  accessory  may  be 
indicted  and  convicted  whether  the  principal  felon  has  or 
has  not  been  convicted,  or  go  even  further  with  accessories 
before  the  fact,  and  make  them  principals. 

§73.  Accessories  After  the  Fact.  An  accessory  after 
the  fact  is  one  who  receives,  relieves,  comforts,  or  assists 
a  felon,  knowing  him  to  be  a  felon,  with  the  intention  of 
shielding  him  from  the  law.  At  the  common  law,  a  wife 
could  not  be  an  accessory  after  the  fact. 

**As  to  the  receiving,  relieving,  and  assisting  one  known 
to  be  a  felon,  it  may  be  said  in  general  terms,  that  any 
assistance  given  to  one  known  to  be  a  felon  in  order  to 
hinder  his  apprehension,  trial,  or  punishment,  is  sufficient 
to  make  a  man  accessory  after  the  fact;  as,  that  he  con- 
cealed him  in  the  house,  or  shut  the  door  against  his  pur- 
suers, until  he  should  have  an  opportunity  to  escape;  or 
took  money  from  him  to  allow  him  to  escape;  or  supplied 
him  with  money,  a  horse,  or  other  necessaries,  in  order  to 
enable  him  to  escape;  or  that  the  principal  was  in  prison, 
and  the  jailer  was  bribed  to  let  him  escape;  or  conveyed 
instruments  to  him  to  enable  him  to  break  prison  and 
escape.  .  .  .  But  merely  suffering  the  principal  to 
escape  will  not  make  the  party  accessory  after  the  fact ;  for 
it  amounts,  at  most,  to  a  mere  omission.^i  Or  if  he  agree 
for  money  not  to  prosecute  the  felon;  or  if,  knowing  of  a 
felony,  fails  to  make  it  known  to  the  proper  authorities; 
none  of  these  acts  would  be  sufficient  to  make  the  party  an 
accessory  after  the  fact.  If  the  thing  done  amounts  to  no 
more  than  the  compounding  of  a  felony,  or  the  misprision  of 
it,  the  doer  will  not  be  an  accessory."  22 

21 1  Hale  619,  9  H,  IV.  1.         22  Wren  v.  Commonwealth,  26  Grat,  952. 


EXAMINATION  PAPER 


CRIMINAL  LAW 

PART  I 


Read  Carefully:  Place  your  name  and  full  address  at  the  head  of  the 
paper.  Any  cheap,  hght  paper  like  the  sample  previously  sent  you  may  be 
used.  Do  not  crowd  your  work,  but  arrange  it  neatly  and  legibly.  Do  not 
copy  the  answers  from  the  Instruction  Paper;  twe  your  ovm  words,  so  that  toe 
may  be  sure  you  understand  the  subject. 


1.  Are  all  acts,  which  are  punishable  by  the  state,  crimes? 

2.  Distinguish  a  crime  from  a  tort. 

3.  Is  consent  ever  a  defense  to  a  crime?    If  so,  when? 

4.  Is  contributory  negligence  ever  a  defense  to  a  crime?  If 
so,  when? 

5.  Distinguish  a  misdemeanor  from  a  felony. 

6.  When  is  the  distinction  between  malum  in  se  and  malum 
prohibitum  important  in  criminal  law? 

7.  What  acts  are  crimes  in  the  federal  courts? 

8.  What  state  has  jurisdiction  of  the  crime  in  a  case  where 
A  shoots  B,  each  standing  in  different  states,  and  B  dies  in  a  third 
state? 

9.  Is  intent  without  an  act  ever  a  crime?    Discuss. 

10.  In  what  cases  is  an  omission  an  act? 

11.  A  becomes  frightened  and  throws  himself  into  a  river  to 
escape  further  violence  from  B.    A  drowns,  is  B  guilty  of  murder? 

12.  Several  parties  contribute  to  the  commitment  of  a  crime, 
but  only  one  does  the  final  act.  To  what  extent  are  the  others 
criminals? 

13.  In  what  cases  is  an  attempt  to  commit  a  crime  itself  a 
crime? 

14.  Define  conspiracy. 

15.  When,  if  ever,  are  ignorance  of  the  law  and  mistake  of  fact 
defenses  to  a  crime? 

16.  A  intends  a  malicious  assault  on  B  and  accidentally 
wounds  C,  can  he  be  held  for  malicious  wounding  of  Cf 


CRIMINAL  LAW 

17.  What  is  meant  by  specific  intent  in  criminal  law? 

18.  Name  and  define  the  several  tests  of  insanity. 

19.  Is  intoxication  ever  an  excuse  for  a  crime?    Explain. 

20.  What  was  the  liability  of  married  women  for  crimes  at 
common  law? 

21.  State  the  liability  of  an  infant  for  his  crimes. 

22.  Is  an  ofiicer  of  the  law  ever  justified  in  killing  when  making 
an  arrest  or  resisting  an  escape?    If  so,  when? 

23.  What  is  the  doctrine  of  "Retreat  to  the  Wall",  and  to  what 
extent  is  it  generally  considered  the  law  today? 

24.  To  what  extent  is  one  justified  in  the  defense  of  his  dwelling? 

25.  To  what  extent  may  force  be  used  in  the  recapture  of 
property? 

26.  Is  the  killing  of  one  of  a  party  ever  justified  in  order  to 
preserve  the  lives  of  the  remainder?    Justify  your  answer. 

27.  Is  custom  ever  an  excuse  for  a  crime?    Explain. 

28.  A,  B,  and  C  design  to  burn  D's  house.    A  stays  at  home, 
and  B  and  C  burn  E's  house  and  kill  E.    Is  A  liable? 

29.  In  what  cases  is  a  principal  liable  for  the  crimes  of  his 
agent? 

30.  Distinguish  a  principal  from  an  accessory,  and  the  two 
degrees  of  principal. 

31.  Are  there  ever  accessories  in  misdemeanors?    Explain. 

32.  Distinguish  an  accessory  before  the  fact  from  one  after 
the  fact. 

After  completing  the  work,  add  and  sign  the  following  statement: 

I  hereby  certify  that  the  above  work  ia  entirely  my  own. 

(Signed) 


"JX    000 


